false
0001175151
0001175151
2024-12-09
2024-12-09
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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):
December 9, 2024
CYTOSORBENTS
CORPORATION
(Exact name of registrant as specified in its
charter)
| Delaware |
001-36792 |
98-0373793 |
(State
or other jurisdiction
of incorporation) |
(Commission
File
Number) |
(IRS
Employer
Identification
No.) |
305
College Road East
Princeton,
New Jersey 08540
(Address
of principal executive offices)
(732)
329-8885
(Registrant’s telephone number, including
area code)
Not
Applicable
|
| (Former name or former address, if changed since last report.) |
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| |
¨ |
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)) |
Securities registered pursuant to Section 12(b)
of the Act:
| Title
of each class |
Trading
Symbol |
Name
of each exchange on which
registered |
| Common
Stock, par value $0.001 per share |
CTSO |
The
Nasdaq Stock
Market LLC (Nasdaq Capital Market) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§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. ¨
Item 7.01. Regulation FD Disclosure
On December 9, 2024 the Company issued a press
release announcing the rights offering described below in Item 8.01. A copy of the press release is attached as Exhibit 99.9 to this Current
Report on Form 8-K.
The information in this Item 7.01, including
Exhibit 99.9 furnished herewith, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act
of 1934, as amended, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended,
except as shall be expressly set forth by specific reference in such filing.
Item 8.01. Other Events.
On December 9, 2024, CytoSorbents Corporation
(the “Company”) announced a rights offering (the “Rights Offering”). The Rights Offering is being made pursuant
to the Company’s Registration Statement on Form S-3 (File No. 333-281062) (the “Registration Statement”), the prospectus
forming a part of the Registration Statement and the prospectus supplement relating the Rights Offering (the “Prospectus Supplement”),
filed with the SEC on December 9, 2024.
Copies of the prospectus and the related prospectus
supplement will be mailed to all eligible stockholders and certain eligible warrantholders as of 5:00 p.m., New York City time, December
16, 2024, the Record Date, on or about December 16, 2024, and can also be accessed through the SEC’s website at www.sec.gov or be
obtained from the information agent, D.F. King & Co., Inc., by calling (800) 549-6864 (toll-free) or (212) 269-5550 (broker-dealers
and nominees). Additional information regarding the Rights Offering is set forth in the prospectus and the related prospectus supplement.
In connection with the Rights Offering, the Company
is filing certain ancillary documents as Exhibits 4.1, 4.2, 4.3, 5.1, 99.1, 99.2, 99.3, 99.4, 99.5, 99.6, 99.7, and 99.8, to this Current
Report on Form 8-K for the purpose of incorporating such items by reference as exhibits to the Registration Statement.
On December 9, 2024, in connection with the commencement
of the Rights Offering, the Company entered into a Dealer-Manager Agreement with Moody Capital Solutions, Inc., the dealer-manager for
the Rights Offering. A copy of the Dealer-Manager Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated
herein by reference. The foregoing description of Exhibit 1.1 does not purport to be complete and is qualified in its entirety by reference
to the full text of the exhibit.
Forward Looking Statements
This Current Report contains forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of 1995, including statements regarding the Rights Offering,
the timing thereof, the Company’s ability to complete the Rights Offering on the expected terms or at all, and other information
and statements that are not historical fact. These forward-looking statements involve certain risks and uncertainties that could cause
actual results to differ materially from those expressed or implied by these statements. All forward-looking statements speak only as
of the date of this Current Report, and unless legally required, the Company undertakes no obligation to update or revise publicly any
forward-looking statements, whether as a result of new information, future events or otherwise. Please refer to the Company’s filings
with the SEC, including its most recently filed Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q, for additional
information about the risks and uncertainties related to the Company’s business that may affect the forward-looking statements
made in this Current Report.
Not a Solicitation
This Current Report does not constitute an offer
to sell or a solicitation of an offer to buy the securities described above, and shall not constitute an offer, solicitation or sale,
nor shall there be any sale of such securities of the Company in any state or other jurisdiction in which such offer, solicitation, or
sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: December 9, 2024
| |
CYTOSORBENTS CORPORATION |
| |
|
|
| |
By: |
/s/ Dr. Phillip P. Chan |
| |
|
Name: |
Dr. Phillip P. Chan |
| |
|
Title: |
Chief Executive Officer |
Exhibit 1.1
DEALER-MANAGER AGREEMENT
December 9, 2024
Moody Capital Solutions, Inc.
As Dealer-Manager
2458 Dunkerrin Lane
Atlanta, GA 30360
Attention: Richard H. Kreger
Ladies and Gentlemen:
The
following will confirm our agreement relating to the proposed offering (the “Offering”)
to be undertaken by CytoSorbents Corporation, a Delaware corporation (the “Company”),
pursuant to which the Company will dividend at no cost to holders of record of its common
stock, par value $0.001 per share (“Common Stock”) and certain eligible
warrantholders, non-transferable subscription right warrants (the “Subscription
Rights”) as set forth in the Company’s Prospectus Supplement to be filed
on or about December 9, 2024 (the “Prospectus Supplement”) to the Company’s
Form S-3 shelf registration statement (File No. 333-281062) declared effective by the U.S.
Securities and Exchange Commission (the “Commission”) on September 30,
2024 (the “Registration Statement”), to subscribe for and purchase up
to 6,250,000 units (the “Units”) at a subscription price equal to $1.00
(the “Unit Subscription Price”). Each Unit will consist of one share of
Common Stock, one Series A right warrant to purchase one share of Common Stock (“Series
A Right Warrant”), and one Series B right warrant to purchase one share of Common
Stock (“Series B Right Warrant” and, together with the Series A Right
Warrants, the “Right Warrants”), with each Right Warrant entitling the
holder to purchase one share of Common Stock. The shares of Common Stock and the Right Warrants
comprising the Units may only be purchased as a Unit but will be issued separately. The Subscription
Rights and Right Warrants are collectively referred to herein as the “Rights”.
Shares of Common Stock underlying the Rights are referred to herein as the “Shares”.
The maximum number of Shares that may be issued in the Offering is 12,500,000 shares.
1. The
Offering.
(a) The
Company proposes to undertake the Offering pursuant to which each holder of Common Stock and certain eligible warrants shall receive
one Subscription Right for every share of Common Stock held of record by such holder at the close of business on December 16, 2024 (the
“Record Date”). Holders of Subscription Rights (each, a “Holder”) will be entitled to subscribe
for and purchase, at the Subscription Price, one Unit for every Subscription Right granted to such Holders on the Record Date (the “Basic
Right”).
(b) The
Subscription Rights shall be non-transferable.
(c) Any
Holder who fully exercises all Basic Rights issued to such Holder is entitled to subscribe for Units which were not otherwise subscribed
for by other Holders pursuant to their Basic Rights (the “Oversubscription Privilege”). The Oversubscription Privilege
shall allow a Holder to subscribe for any or all of the Units which were not otherwise subscribed for as of the Subscription Right Expiration
Date (as defined below). Units acquired pursuant to the Basic Subscription Right and the Oversubscription Privilege are subject to certain
limitations and pro rata allocation, as more fully discussed in the Prospectus Supplement.
(d) Unless
extended as provided in the Prospectus (as defined below), the Subscription Rights are intended to expire at 5:00 p.m., Eastern time,
on January 10, 2025 (the “Subscription Rights Expiration Date”). Notwithstanding the foregoing, the Company shall
have the right to extend the Subscription Rights Expiration Date for up to an additional thirty (30) calendar days in its sole discretion,
in which case all Basic Rights and Oversubscription Privileges exercised during the extension period will be filled on a first-come,
first-serve basis. The Company will announce any extension in a press release issued no later than 9:00 a.m., Eastern time, on the business
day after the most recently announced expiration date.
(e) The
Right Warrants are exercisable commencing on their date of issuance at an exercise price equal to (i) in the case of the Series A Right
Warrants, 90% of the 5-day volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of
the Series A Right Warrants, rounded down to the nearest whole penny but (x) not lower than $1.00 and (y) not higher than $2.00, and
(ii) in the case of the Series B Right Warrants, 90% of the 5-day volume weighted average price of our Common Stock over the 5-trading
days prior to the expiration date of the Series B Right Warrants, rounded down to the nearest whole cent but (x) not lower than $2.00
and (y) not higher than $4.00. If at the expiration date of each of the Right Warrants, the exercise price as determined above, is lower
than the initial maximum amount paid, any excess subscription amount paid by a Holder will be promptly, returned to the Holder, without
interest or penalty.
(f) All
funds from the exercise of Rights shall be deposited with a bank or other financial institution and Equiniti Trust Company, LLC shall
act as the subscription agent and escrow agent (the “Subscription Agent”). Funds from the exercise of Subscription
Rights shall be held in a segregated escrow account pending a final determination of the number of Units to be issued pursuant to the
exercise of Basic Rights and Oversubscription Privileges. As soon as practicable after the Subscription Rights Expiration Date, the Company
shall conduct a closing of the Subscription Rights. As soon as practicable after each Right Warrant Expiration Date, the Company shall
conduct a closing as to each Right Warrant.
2. Appointment
as Dealer-Manager; Role of Dealer-Manager.
(a) The
Company has engaged Moody Capital Solutions, Inc. as the exclusive dealer-manager (the “Dealer-Manager”) in connection
with the Offering, and authorizes the Dealer-Manager to act as such on its behalf in connection with the Offering, in accordance with
this Dealer-Manager Agreement (this “Agreement”). Until the expiration date of the Series B Right Warrants, the Company
will not solicit, negotiate with or enter into any agreement with any placement agent, financial advisor, dealer-manager, brokers, dealers
or underwriters or any other person or entity in connection with the Offering. On the basis of the representations and warranties and
agreements of the Company contained in this Agreement and subject to and in accordance with the terms and conditions hereof, the Dealer-Manager
agrees that as Dealer-Manager it will, in accordance with its customary practice and to the extent requested by the Company, use its
commercially reasonable efforts to (i) advise on pricing, structuring and other terms and conditions of the Offering, including whether
to provide for transferability, tradability and Oversubscription privileges and limits (it being acknowledged that such services have
been previously provided pursuant to the engagement letter, dated as of November 20, 2024, between the Dealer-Manager and the Company
(the “Engagement Letter”), (ii) provide guidance on general market conditions and their impact on the Offering, (iii)
assist the Company in drafting a presentation that may be used to market the Offering to existing and potential investors, describing
the proposed capital raise, the Company’s history and performance to date, track records of key executives, highlights of the Company’s
business plan and the intended use of proceeds from the Offering, (iv) advise on the selection of the Information Agent and Subscription
Agent (it being acknowledged that such advice has been previously rendered pursuant to the Engagement Letter), (v) assist the Company
with its understanding of state blue sky laws, (vi) solicit the holders of the Rights to encourage them to exercise such Rights, and
(vii) enter into selected dealer agreements with other registered broker-dealers and provide the Company with the opportunity to introduce
the Company and make a presentation to such broker-dealers, in each case using its best efforts and in conformity with all applicable
federal and state securities laws. Notwithstanding anything that may be to the contrary in this Agreement, the Company and the Dealer-Manager
hereby agree that the Dealer-Manager will not underwrite the Offering, the Dealer-Manager has no obligation to act, and will not act,
in any capacity as an underwriter in connection with the Offering, and the Dealer-Manager has no obligation to purchase or procure purchases
of the Rights or Shares offered in connection with the Offering. The parties acknowledge and agree that the Dealer-Manager may perform
certain of its services through its affiliates and any of its affiliates performing services hereunder shall be entitled to the benefits
and be subject to the terms and conditions of this Agreement.
(b) The
Company acknowledges and agrees that: (i) the terms of this Agreement are intended to be arm’s-length commercial transactions between
the Company, on the one hand, and the Dealer-Manager, on the other hand; (ii) other than the obligations expressly set forth in this
Agreement and the Engagement Letter, in connection therewith, the Dealer-Manager is not acting as a fiduciary of the Company; (iii) other
than the obligations expressly set forth in this Agreement and the Engagement Letter, the Dealer-Manager has not assumed any agency or
fiduciary responsibilities in favor of the Company with respect to the Offering or the process leading thereto (irrespective of whether
the Dealer-Manager has advised or is currently advising the Company on other matters in its capacity as Dealer-Manager or otherwise)
or any other obligation to the Company with respect to the Offering, except the obligations expressly set forth in this Agreement; and
(iv) the Dealer-Manager may be engaged in a broad range of transactions that involve interests that differ from those of the Company
which the Dealer-Manager may be under no obligation to disclose. The Company acknowledges that it has consulted its own legal and financial
advisors with respect to its execution of and performance under this Agreement.
3. No
Liability for Acts of Brokers, Dealers, Banks and Trust Companies. The Dealer-Manager shall not be subject to any liability (in tort,
contract or otherwise) to the Company or the Company’s Subsidiaries, if any (as such term is defined in Rule 405 of the Securities
Act of 1933, as amended (the “Securities Act”)), or Affiliates (as such term is defined in Rule 144 under the Securities
Act) for any act or omission on the part of any broker or dealer in securities (other than the Dealer-Manager or any Affiliates of the
Dealer-Manager) or any natural person, partnership, limited liability partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture, or other entity or organization (each, a “Person”).
Except as set forth herein or in the Engagement Letter, the Company agrees that it will not hold the Dealer-Manager liable for its own
acts or omissions in performing its obligations as advisor or Dealer-Manager hereunder or otherwise in connection with the Offering or
the related transactions, and except for any losses, claims, damages, liabilities and expenses to have resulted directly from any such
acts or omissions undertaken or omitted to be taken by the Dealer-Manager or its Affiliates through gross negligence, bad faith or willful
misconduct, in all cases as determined in a non-appealable final judgment by a court of competent jurisdiction. The Dealer-Manager may
appoint sub-placement agents and/or dealers in connection with the Offering. In soliciting or obtaining exercises of Rights, the Dealer-Manager
shall not be deemed to be acting as the agent of the Company or as the agent of any broker, dealer, bank or trust company, and no broker,
dealer, bank or trust company shall be deemed to be acting as the Dealer-Manager’s agent or as the agent of the Company. Unless
the context specifically requires otherwise, the term “Company” as used in this Agreement means the Company and its
Subsidiaries, if any, collectively on a consolidated basis.
4. The
Offer Documents.
(a) There
will be used in connection with the Offering certain materials in addition to the Registration Statement, any Preliminary Prospectus,
Base Prospectus and any Prospectus Supplement (each as defined herein), together with any amendments or supplements thereto, as filed,
including: (i) all exhibits to the Registration Statement which pertain to the conduct of the Offering and (ii) any soliciting materials
relating to the Offering approved by the Company, and (iii) any “free-writing prospectus” with respect to the Offering filed
by the Company (collectively with the Registration Statement and the Prospectus Supplement, the “Offer Documents”).
(b) The
Company shall furnish copies of drafts of any Offer Documents to the Dealer-Manager within a reasonable time in advance of filing with
the Commission or with any other federal, state, or other governmental agency or instrumentality or court (“Other Agency”).
The Dealer-Manager shall be given an opportunity to review and comment upon the Offer Documents, to which comments the Company will give
reasonable consideration.
(c) In
the event that the Company uses or permits the use of, or files with the Commission or any Other Agency, any Offer Documents (i) which
have not been submitted to the Dealer-Manager for its comments, or (ii) which have been so submitted and with respect to which the
Dealer-Manager has made comments, but which comments have not resulted in a response reasonably satisfactory to the Dealer-Manager and
its counsel to reflect such comments, then the Dealer-Manager shall be entitled to withdraw as a Dealer-Manager in connection with the
Offering and the related transactions, without any liability or penalty to the Dealer-Manager or any other Person identified in Section
11 hereof as an “indemnified party,” and the Dealer-Manager shall be entitled to receive the payment of all fees and expenses
payable under this Agreement or the Engagement Letter which have accrued to the date of such withdrawal. No such event has occurred through
the date hereof.
(d) The
Company agrees to furnish the Dealer-Manager with as many copies as it may reasonably request of the final forms of the Offer Documents,
and the Dealer-Manager is authorized to use copies of the Offer Documents in connection with its acting as Dealer-Manager. The Company
represents and warrants to the Dealer-Manager that the Dealer-Manager may rely on the accuracy and completeness of all of the Offer Documents
and any other information delivered to the Dealer-Manager by or on behalf of the Company in connection with the Offering. The Dealer-Manager
hereby agrees that it will not disseminate any written material for or in connection with the solicitation of exercises of Rights pursuant
to the Offering other than the Offer Documents and any other information delivered to the Dealer-Manager by or on behalf of the Company
in connection with the Offering.
(e) The
Company represents and agrees that no solicitation material, other than the Offer Documents and the documents to be filed therewith as
exhibits thereto (each in the form of which has been approved by the Dealer-Manager), will be used by or on behalf of the Company in
connection with the Offering, in either case without the prior approval of the Dealer-Manager, which approval will not be unreasonably
withheld. In the event that the Company uses or permits the use of any such solicitation material in connection with the Offering, then
the Dealer-Manager shall be entitled to withdraw as Dealer-Manager in connection with the Offering and the related transactions without
any liability or penalty to the Dealer-Manager or any other Person identified in Section 11 hereof as an “indemnified party,”
and the Dealer-Manager shall be entitled to receive the payment of all fees and expenses payable under this Agreement or the Engagement
Letter which have accrued to the date of such withdrawal or which otherwise thereafter become payable.
(f) As
of the date hereof and at all times prior to and following the effectiveness of the Registration Statement, the Company shall, and cause
its officers, directors and Affiliates to, comply with all rules and regulations of the Commission relating to public offerings, including,
without limitation, those relating to public statements and disclosures of material non-public information.
(g) The
Company agrees that any reference to the Dealer-Manager in any Offer Documents or in any newspaper, announcement or press release or
other document or communication is subject to the Dealer-Manager’s prior consent, which consent shall not be unreasonably withheld.
The Dealer-Manager agrees that any reference to the Company or the Offering in a press release or other document or communication made
by the Dealer-Manager, any of its Affiliates or a registered broker-dealer with whom the Dealer-Manager has entered into a selected dealer
agreement is subject to the Company’s prior consent, which consent shall not be unreasonably withheld.
5. Representations
and Warranties. The Company represents and warrants to the Dealer-Manager that:
(a)
The Company has prepared and filed with the Commission a registration statement, and an amendment or amendments thereto, on Form
S-3 (File No. 333-281062) including a prospectus (the “Base Prospectus”) for the registration of the certain types
of securities under the Securities Act, which Registration Statement, as so amended prior to the Effective Time (including post-effective
amendments, if any), has been declared effective by the Commission and copies of which have heretofore been delivered to the Dealer-Manager.
At the time of such filing, the Company met the requirements of Form S-3 under the Securities Act. Such Registration Statement meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said rule. Promptly after execution and delivery
of this Agreement, the Company will prepare and file a prospectus supplement (the “Prospectus Supplement”) describing
the Rights in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations of the Commission
under the Securities Act (the “Securities Act Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”)
of the Securities Act Regulations. A copy of the Prospectus Supplement, as filed with the Commission, has been delivered to the Dealer-Manager.
The information included in the Prospectus Supplement that was omitted from such Registration Statement at the time it became effective
but that is deemed to be part of such Registration Statement at the time it became effective pursuant to paragraph (b) of Rule 430A is
referred to as “Rule 430A Information.” The Base Prospectus and each prospectus used before such Registration Statement
became effective, and any prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is referred to herein as a “Preliminary Prospectus.” For purposes of this Agreement,
“Effective Time” means the date and the time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; “Effective Date” means the date of the Effective
Time; “Registration Statement” means such Registration Statement, as amended at the Effective Time, including any
documents which are exhibits thereto; and “Prospectus” means such final prospectus, as first filed with the Commission
pursuant to paragraph (1) or (4) of Rule 424(b) of the Securities Act, including the Base Prospectus, the Prospectus Supplement and all
information or reports under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), incorporated in
the Prospectus by reference. The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus. All references in this Agreement to the Registration Statement, a Preliminary Prospectus, and the Prospectus, or any
amendments or supplements to any of the foregoing shall be deemed to include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”). The Prospectus delivered to the Dealer-Manager
for use in connection with the Offering will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T promulgated by the Commission.
(b) The
Registration Statement (together with all exhibits filed as part of the Registration Statement) conforms, and any Preliminary Prospectus
and the Prospectus and any further amendments or supplements to the Registration Statement conforms or will conform, when they are filed
with or become effective by the Commission, as the case may be, in each case, in all material respects to the requirements of the Securities
Act and collectively do not and will not, as of the applicable Effective Date (as to the Registration Statement and any amendment thereto)
and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) 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 (with respect
to the Prospectus, in the light of the circumstances under which they were made) not misleading; provided that no representation
or warranty is made by the Company as to information contained in or omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the Company by or on behalf of the Dealer-Manager specifically for inclusion
therein, it being acknowledged and agreed that such information provided by or on behalf of the Dealer-Manager consists solely and exclusively
of disclosure of the name of the Dealer-Manager acting in its capacity as dealer-manager for the Offering contained in the Prospectus,
and information provided within the “Plan of Distribution” section of the Prospectus (collectively, the “Dealer-Manager
Information”) under appropriate headings and in its final form as approved by the Dealer-Manager and its counsel.
(c) There
are no contracts, agreements, plans or other documents which are required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act which have not been described in the Prospectus, or filed as exhibits to the Registration
Statement or incorporated by reference into the Registration Statement as permitted by the Securities Act.
(d) The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware,
is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged, except where the absence of such power, authority, qualification or ownership
(either individually and in the aggregate) could not reasonably be expected to have a material adverse effect on: (i) the business, condition
(financial or otherwise), results of operations, stockholders’ equity, or properties of the Company or (ii) the Offering or consummation
of any of the other transactions contemplated by this Agreement, the Registration Statement or the Prospectus (any such effect being
a “Material Adverse Effect”).
(e) This
Agreement has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery
by the Dealer-Manager, constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws relating to or affecting creditors’ rights generally and by general principles of equity.
(f) The
Company is not: (i) in violation of its second amended and restated certificate of incorporation (the “charter”) or amended
and restated bylaws (the “by-laws)”, (ii) in default under or in breach of, and no event has occurred which, with notice
or lapse of time or both, would constitute a default or breach under or result in the creation or imposition of any lien, charge, mortgage,
pledge, security interest, claim, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any kind whatsoever
(each, a “Lien”) upon any of the Company’s property or assets pursuant to any material contract, agreement,
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject, or (iii) in violation in any respect of any law, rule, regulation, ordinance, directive,
judgment, decree or order, foreign and domestic, to which it or its properties or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its properties or
assets or to the conduct of its business, except, in the case of clauses (ii) and (iii) above, any violation, default or failure to possess
the same that would not reasonably be expected to have a Material Adverse Effect.
(g) Prior
to or on the date hereof: (i) the Company and the Subscription Agent have entered into a subscription agent agreement (the “Subscription
Agent Agreement”) and (ii) the Company and D.F. King & Co., Inc. (the “Information Agent”) have or will
have entered into an information agent agreement (the “Information Agent Agreement”) if required by the Information
Agent. When executed by the Company, if applicable, each of the Subscription Agent Agreement and the Information Agent Agreement will
have been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by Subscription
Agent or the Information Agent, as the case may be, will constitute a valid and legally binding agreement of the Company enforceable
in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws relating to or affecting creditors’ rights generally and by general principles of equity.
(h) The
Rights to be issued and distributed by the Company have been duly and validly authorized and, when issued and delivered in accordance
with the terms of the Offer Documents, as applicable, will be duly and validly issued, and will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with their terms. No Holder is or will be subject to personal
liability by reason of being such a holder, and the Rights conform to the description thereof contained in the Prospectus. The shares
of Common Stock issuable upon exercise of any Rights have been duly and validly authorized and, when issued and delivered in accordance
with the terms of the Rights, will be duly and validly issued, fully paid and non-assessable and will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with their terms, no holder of the Common Stock is or will be
subject to personal liability by reason of being such a holder, and the Common Stock conforms to the description thereof contained in
the Prospectus.
(i) Except
as disclosed in the Prospectus with respect to the Company’s authorized capitalization, the Shares have been or will be duly and
validly authorized and reserved for issuance upon exercise of the Rights, as applicable, are free of statutory and contractual preemptive
rights and are sufficient in number to meet the exercise requirements of the Offering; and the Shares, when so issued and delivered against
payment therefor in accordance with the terms of the Offering, will be duly and validly issued, fully paid and non-assessable, with no
personal liability attaching to the ownership thereof.
(j) The
Common Stock is listed for trading on The Nasdaq Capital Market (the “Nasdaq”). The Company has not received an oral
or written notification from Nasdaq or any court or any other federal, state, local or foreign governmental or regulatory authority having
jurisdiction over the Company or any of its properties or assets (“Governmental Authority”) of any investigation or
other action that would cause the Common Stock to not be listed on The Nasdaq Capital Market.
(k) The
Company has an authorized capitalization as set forth in the charter, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable and have been issued in compliance with federal and state
securities laws. None of the outstanding shares of Company capital stock were issued in violation of any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into
or exchangeable or exercisable for, any capital stock of the Company or any of its Subsidiaries other than those accurately described
in the Registration Statement and Prospectus or in information incorporated therein by reference. The description of the Company’s
stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, set forth, or incorporated
by reference, in the Registration Statement and Prospectus accurately and fairly presents in all material respects the information required
to be shown with respect to such plans, arrangements, options and rights.
(l) The
Company owns or leases all such assets or properties as are reasonably necessary to the conduct of its business as presently operated
and as proposed to be operated as described in the Registration Statement and the Prospectus. Except to the extent licensed or leased
by the Company, the Company has good and marketable title in fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of any Lien, except for such Liens as are described in the Registration Statement
and the Prospectus or in information incorporated therein by reference. Any real property and buildings held under lease or sublease
by the Company is held under valid, subsisting and enforceable leases with such exceptions as are not material to, and do not interfere
with, the use made and proposed to be made as described in the Registration Statement and the Prospectus of such property and buildings
by the Company. The Company has not received any notice of any material claim adverse to its ownership of any real or personal property
or of any material claim against the continued possession of any real property, whether owned or held under lease or sublease by the
Company.
(m) The
Company has all material consents, approvals, authorizations, orders, registrations, qualifications, licenses, filings and permits of,
with and from all judicial, regulatory and other Governmental Authorities and all third parties, foreign and domestic, including, without
limitation, those administered by the U.S. Food and Drug Administration of the U.S. Department of Health and Human Services (“FDA”),
or any foreign, federal, state or local governmental or regulatory authority performing functions similar to those performed by the FDA
(collectively, with the Licensing Requirements described below, the “Consents”), to own, lease and operate its properties
and conduct their businesses as presently being conducted and as disclosed in the Registration Statement and the Prospectus, and each
such Consent is valid and in full force and effect. The Company has not received notice of any investigation or proceedings which results
in or, if decided adversely to the Company, could reasonably be expected to result in, the revocation of any Consent or reasonably be
expected to have a Material Adverse Effect.
(n) The
execution, delivery and performance by the Company of this Agreement, the Subscription Agent Agreement and the Information Agent Agreement,
if applicable, the issuance of the Rights, Units and Shares in accordance with the terms of the Offer Documents and the consummation
by the Company of the transactions contemplated hereby and thereby, will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which it is bound or to which any of the properties or assets of the Company
is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any statute or
any order, rule or regulation of any court or any Governmental Authority; and except for the registration of the Rights, Units and Shares
under the Securities Act, and such consents, approvals, authorizations, registrations or qualifications as may be required under the
Exchange Act, and applicable state securities laws in connection with the distribution of the Rights, Units and Shares during the Offering,
no consent, approval, authorization or order of, or filing or registration with, any Governmental Authority is required for the execution,
delivery and performance of this Agreement by the Company and the consummation by it of the transactions contemplated hereby.
(o) There
are no contracts, agreements or understandings between the Company and any Person granting such Person the right to require the Company
to include such securities in the securities registered pursuant to the Registration Statement. No holder of any security of the Company
has any rights of rescission or similar rights with respect to such securities held by them.
(p) The
Company has not sustained, since the date of the latest balance sheet included in the Prospectus or after such date and as disclosed
in the Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree; and, since such date or after such
date and as disclosed in the Prospectus, there has not been any material adverse change or any development affecting the general affairs,
management, financial position, stockholders’ equity or results of operations the Company (a “Material Adverse Change”).
Since the date of the latest balance sheet presented in the Prospectus, the Company has not incurred or undertaken any liabilities or
obligations, whether direct or indirect, liquidated or contingent, matured or unmatured, or entered into any transactions, including
any acquisition or disposition of any business or asset, which are material to the Company, except for liabilities, obligations and transactions
which are disclosed in the Registration Statement, any Preliminary Prospectus and the Prospectus.
(q) WithumSmith+Brown,
PC (the “Auditors”), whose reports relating to the Company are incorporated by reference in the Registration Statement,
are independent registered public accountants as required by the Securities Act, the Exchange Act and the rules and regulations promulgated
by the Public Company Accounting Oversight Board (the “PCAOB”). The Auditors, to the Company’s knowledge, are
duly registered and in good standing with the PCAOB. The Auditors have not, during the periods covered by the financial statements included
in the Registration Statement, any Preliminary Prospectus and the Prospectus, provided to the Company or its Subsidiaries any non-audit
services, as such term is used in Section 10A(g) of the Exchange Act.
(r) The
financial statements, including the notes thereto, and any supporting schedules included (by incorporation or otherwise) in the Registration
Statement, any Preliminary Prospectus and the Prospectus present fairly, in all material respects, the financial position as of the dates
indicated and the cash flows and results of operations for the periods specified of the Company. Except as otherwise stated in the Registration
Statement, any Preliminary Prospectus and the Prospectus, said financial statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis throughout the periods involved. Any supporting schedules included
in the Registration Statement, any Preliminary Prospectus and the Prospectus present fairly, in all material respects, the information
required to be stated therein. No other financial statements or supporting schedules are required to be included or incorporated by reference
in the Registration Statement. The other financial and statistical information included in the Registration Statement, any Preliminary
Prospectus and the Prospectus present fairly, in all material respects, the information included therein and have been prepared on a
basis consistent with that of the financial statements that are included in the Registration Statement, such Preliminary Prospectus and
the Prospectus and the books and records of the respective entities presented therein.
(s) There
are no pro forma or as adjusted financial statements which are required to be included in the Registration Statement, any Preliminary
Prospectus and the Prospectus in accordance with Regulation S-X under the Securities Act which have not been included as so required.
The pro forma and/or as adjusted financial information included in the Registration Statement, any Preliminary Prospectus and the Prospectus
has been properly compiled and prepared in accordance with the applicable requirements of the Securities Act and include all adjustments
necessary to present fairly, in all material respects, in accordance with generally accepted accounting principles the pro forma and
as adjusted financial position of the respective entity or entities presented therein at the respective dates indicated and their cash
flows and the results of operations for the respective periods specified. The assumptions used in preparing the pro forma and as adjusted
financial information included in the Registration Statement, any Preliminary Prospectus and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the transactions or events described therein. The related pro forma and
pro forma as adjusted adjustments give appropriate effect to those assumptions; and the pro forma and pro forma as adjusted financial
information reflect the proper application of those adjustments to the corresponding historical financial statement amounts.
(t) The
statistical, industry-related and market-related data included in the Registration Statement, any Preliminary Prospectus and the Prospectus
are based on or derived from sources which the Company reasonably believes are reliable and accurate, and such data agree with the sources
from which they are derived. All applicable third-party consents have been obtained in order for such data to be included in the Registration
Statement and the Prospectus.
(u) The
Company maintains a system of internal accounting and other controls sufficient to provide reasonable assurances 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 United States generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization,
and (iv) the recorded accounting for assets is compared with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(v) The
Company’s Board of Directors has validly appointed an audit committee, compensation committee and nominating and corporate governance
committee whose composition satisfies the requirements of the rules and regulations of the Commission and Nasdaq, and the Company’s
Board of Directors and/or audit committee, compensation committee and the nominating corporate governance committee has each adopted
a charter as described in the Registration Statement, and such charters are in full force and effect as of the date hereof. Neither the
Company’s Board of Directors nor the audit committee thereof has been informed of: (i) except as disclosed in the Registration
Statement and the Prospectus, any significant deficiencies and material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report
financial information; or (ii) any fraud, whether or not material, that involves management or other employees who have a significant
role in the Company’s internal control over financial reporting.
(w) The
Company is in material compliance with the provisions of the Sarbanes-Oxley Act of 2002, as amended (“Sarbanes-Oxley”),
applicable to the Company, and the rules and regulations promulgated thereunder and related or similar rules and regulations promulgated
by any other Governmental Authority or self-regulatory entity or agency, except for violations which, singly or in the aggregate, are
disclosed in the Prospectus or would not reasonably be expected to have a Material Adverse Effect.
(x) No
relationship, direct or indirect, exists between or among any of the Company or any Affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any Affiliate of the Company, on the other hand, which is required
by the Securities Act or the Exchange Act to be described in the Registration Statement or the Prospectus which is not so described as
required. Except as disclosed in the Registration Statement and the Prospectus, there are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit
of any of the officers or directors of the Company or any of their respective family members. The Company has not, in violation of Sarbanes-Oxley,
directly or indirectly, including through any Affiliate of the Company (other than as permitted under Sarbanes-Oxley for depositary institutions),
extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan
to or for any director or executive officer of the Company.
(y) Subject
to the parenthetical set forth below, there are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries
is a party or of which any property or asset of the Company or any of its Subsidiaries is the subject, including without limitation any
proceeding before the FDA or comparable federal, state local or foreign governmental bodies (it being understood that the interaction
between the Company and the FDA and such comparable governmental bodies relating to the clinical development and product approval process
shall not be deemed proceeding for the purposes of this representation), which, if determined adversely to the Company, are reasonably
likely to have a Material Adverse Effect; and to the Company’s knowledge, except as disclosed in the Prospectus, no such proceedings
are threatened or contemplated by Governmental Authorities or threatened by others.
(z) The
Company has filed, or to the extent disputed has set aside any necessary accruals, with respect to all necessary federal, state and foreign
income and franchise tax returns and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except where the failure to make such filings or make such payments, either individually
or in the aggregate, could not reasonably be expected to have, a Material Adverse Effect. The Company has made adequate charges, accruals
and reserves in its financial statements above in respect of all federal, state and foreign income and franchise taxes for all periods
as to which the tax liability of the Company or any of its Subsidiaries has not been finally determined.
(aa) The
Company maintains insurance of the types and in the amounts which the Company believes to be reasonable and sufficient for a company
of its size operating in the Company’s industry, including, but not limited to: (i) directors’ and officers’ insurance
(including insurance covering the Company, its directors and officers for liabilities or losses arising in connection with the Offering,
including, without limitation, liabilities or losses arising under the Securities Act, the Exchange Act and applicable foreign securities
laws), (ii) insurance covering real and personal property owned or leased against theft, damage, destruction, acts of vandalism and all
other risks customarily insured against and (iii) business interruption insurance. There are no claims by the Company under any policy
or instrument described in this paragraph as to which any insurance company is denying liability or defending under a reservation of
rights clause. All of the insurance policies described in this paragraph are in full force and effect. The Company has not been refused
any insurance coverage sought or applied for, and the Company has no 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 at a cost that would not reasonably be expected to have a Material Adverse Effect.
(bb) To
the Company’s knowledge, the Company owns or possesses or has the right to use all patents, patent rights, patent applications,
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names, service names and other intellectual property (collectively,
“Intellectual Property”) necessary to carry on its business as described in the Prospectus and as proposed to be conducted;
the Company has not received any written notice and is not otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interests of the Company, and which asserted infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect. To the Company’s knowledge, all former and current employees of the Company, all other agents, consultants
and contractors of the Company who contributed to or participated in the conception or development of any Intellectual Property for the
Company) have executed written contracts or agreements that assign to the Company all rights to any inventions, improvements, discoveries
or information relating to the business of the Company, including without limitation all Intellectual Property owned, controlled by or
in the possession of the Company. To the Company’s knowledge, there is no unauthorized use, infringement or misappropriation of
any of the Intellectual Property by any third party, employee or former employee. To the Company’s knowledge, each agreement and
instrument (each, a “License Agreement”) pursuant to which any Intellectual Property is licensed to the Company is
in full force and effect, has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company,
enforceable against the Company in accordance with its terms, except as enforcement thereof may be subject to bankruptcy, insolvency
or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles; the Company is in
material compliance with its obligations under all License Agreements and, to the Company’s knowledge, all other parties to any
of the License Agreements are in material compliance with all of their respective obligations thereunder; no event or condition has occurred
or exists that gives or would give any party to any License Agreement the right, either immediately or with notice or passage of time
or both, to terminate or limit (in whole or in part) any such License Agreement or any rights of the Company thereunder, to exercise
any of such party’s remedies thereunder, or to take any action that would adversely affect any rights of the Company thereunder
or that might reasonably be expected to have a Material Adverse Effect, and the Company is not aware of any facts or circumstances that
would result in any of the foregoing or give any party to any License Agreement any such right; and the Company has not received any
notice of default, breach or non-compliance under any License Agreement.
(cc) The
Company: (i) is in full compliance with all existing privacy laws, statutes, rules, regulations or industry guidance applicable to the
ownership, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale,
storage, import, export or disposal of any product manufactured, distributed or sold by the Company or any component thereof (such laws,
statutes, rules, regulations or guidance, collectively, “Applicable Laws”); (ii) is, and, to the Company’s knowledge,
its facility and operations of its suppliers are, in compliance with all applicable federal, state, and local laws, regulations, orders
and decrees governing its business as prescribed by the FDA; (iii) has not received any written notice of adverse finding, warning letter,
untitled letter or other correspondence or notice from any Governmental Authority alleging or asserting noncompliance with any Applicable
Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by
any such Applicable Laws (“Authorizations”); (iv) possesses all Authorizations and such Authorizations are valid and
in full force and effect, and the Company is not in violation of any term of any such Authorizations; (v) has not received written notice
of any claim, suit, proceeding, hearing, enforcement, audit, investigation, arbitration or other action from any Governmental Authority
alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any
such Governmental Authority is considering any such claim, suit, proceeding, hearing, enforcement, audit, investigation, arbitration
or other action; (vi) has not received written notice that any Governmental Authority has taken, is taking or intends to take action
to limit, suspend, modify or revoke any Authorizations and has no knowledge that any such Governmental Authority is considering such
action; (vii) has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such material reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct in all material respects
on the date filed (or were corrected or supplemented by a subsequent submission), except, in the case of each of clauses (i), (ii), (iii),(iv)
and (v), for any default, violation or event that would not, individually or in the aggregate, have or reasonably be expected to have
a Material Adverse Effect.
(dd) The
studies and tests conducted or, to the Company’s knowledge, sponsored by or on behalf of the Company (the “Studies and
Tests”) that are described or referred to in any Preliminary Prospectus, the Prospectus and the Registration Statement were
and, if still pending, are being conducted in accordance with experimental protocols, procedures and controls pursuant to accepted professional
scientific standards and all Applicable Laws and Authorizations; the descriptions of the results of such studies, tests and trials contained
in any Preliminary Prospectus, the Prospectus and the Registration Statement are accurate and complete in all material respects and fairly
present the data derived from such studies, tests and trials. The Company is not aware of any studies or tests, the results of which
the Company believes reasonably call into question the study or test described or referred to in any Preliminary Prospectus, the Prospectus
and the Registration Statement when viewed in the context in which such results are described. The Company has not received any written
notices or correspondence from the FDA or any foreign, state or local governmental body exercising comparable authority suggesting or
requiring a clinical hold, termination, suspension or material modification of the Studies and Tests and that such clinical hold, termination,
suspension or material modification would reasonably be expected to have a Material Adverse Effect. The Company has obtained (or caused
to be obtained) informed consent by or on behalf of each human subject who participated in Studies and Tests. In using or disclosing
patient information received by the Company in connection with the Studies and Tests, the Company has complied in all material respects
with all applicable laws and regulatory rules, including, without limitation, the Health Insurance Portability and Accountability Act
of 1996 and the rules and regulations thereunder. To the Company’s knowledge, none of the Studies and Tests involved any investigator
who has been disqualified as a clinical investigator or has been found by the FDA to have engaged in scientific misconduct or debarred
or excluded from participation in any governmental health care payment program. There has not been any violation of applicable law or
regulation by the Company in its product development efforts, submissions or reports to any regulatory authority that could reasonably
be expected to require investigation, corrective action or enforcement action, except where such violation would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(ee) Neither
the Company nor, to the Company’s knowledge, any of the Company’s directors, officers or employees has violated: (i) the
Bank Secrecy Act, as amended, (ii) the Money Laundering Control Act of 1986, as amended, (iii) the Foreign Corrupt Practices Act of 1977,
as amended, or (iv) the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT ACT) Act of 2001, and/or the rules and regulations promulgated under any such law, or any successor law, except for such
violations which, singly or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No action, suit or
proceeding by or before any Governmental Authority involving the Company with respect to any of the foregoing laws is pending or, to
the Company’s knowledge, threatened.
(ff) Neither
the Company nor any of its Affiliates has, prior to the date hereof, made any offer or sale of any securities which are required to be
“integrated” pursuant to the Securities Act with the offer and sale of the Shares pursuant to the Registration Statement.
(gg) Except
as described in the Registration Statement and the Prospectus, there are no claims, payments, arrangements, agreements or understandings
relating to the payment of a finder’s, consulting or origination fee or other compensation by the Company with respect to the issuance
or exercise of the Rights or the sale of the Shares or any other arrangements, agreements or understandings of the Company or, to the
Company’s knowledge, the Company’s officers, directors and employees or Affiliates that may affect the Dealer-Manager’s
compensation, as determined by the Financial Industry Regulatory Authority, Inc. (“FINRA”). Except as previously disclosed
by the Company to the Dealer-Manager in writing, no officer, director, or beneficial owner of 5% or more of any class of the Company’s
securities (whether debt or equity, registered or unregistered, regardless of the time acquired or the source from which derived) or
any Affiliate thereof is a member of FINRA. No proceeds from the exercise of the Rights will be paid to any FINRA member, or any Persons
associated or affiliated with a member of FINRA, except as specifically contemplated herein. Except as previously disclosed by the Company
to the Dealer-Manager, no Person to whom securities of the Company have been privately issued within the 180-day period prior to the
initial filing date of the Registration Statement has any relationship or affiliation or association with any member of FINRA.
(hh) There
are no contracts, agreements or understandings between the Company and any Person that would give rise to a valid claim against the Company
or the Dealer-Manager for a brokerage commission, finder’s fee or other like payment in connection with the transactions contemplated
by this Agreement, including but not limited to any agreement between the Company and any broker-dealer. Other than the Dealer-Manager,
the Company has not employed any brokers, dealers or underwriters in connection with solicitation of exercise of Rights in the Offering;
and except as provided for in Sections 6 and 7 hereof, no other commissions, fees or discounts will be paid by the Company in connection
with solicitation of the exercise of Rights in the Offering.
(ii) Neither
the Company nor, to the Company’s knowledge, any of the Company’s officers or directors, has at any time during the last
five (5) years: (i) made any unlawful contribution to any candidate for foreign office, or failed to disclose fully any contribution
in violation of law, or (ii) made any payment to any federal or state governmental officer or official, or other Person charged with
similar public or quasi-public duties, other than payments that are not prohibited by the laws of the United States of any jurisdiction
thereof.
(jj) The
Company has not and will not, directly or indirectly through any officer, director or Affiliate of the Company: (i) taken any action
designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the issuance of the Rights or the sale or resale of the Shares,
(ii) since the filing of the Registration Statement sold, bid for or purchased, or paid any Person (other than the Dealer-Manager) any
compensation for soliciting exercises or purchases of, the Rights or the Shares and (iii) until the later of the expiration of the Rights
or the completion of the distribution (within the meaning of Regulation M under the Exchange Act) of the Units and Shares, sell, bid
for or purchase, apply or agree to pay to any Person (other than the Dealer-Manager) any compensation for soliciting another to purchase
any other securities of the Company (except for the solicitation of the exercises of Rights pursuant to the Offer Documents). The foregoing
shall not apply to the offer, sale, agreement to sell or delivery with respect to (i) Units and Shares offered and sold upon exercise
of the Rights, as described in the Prospectus, or (ii) any shares of Common Stock sold pursuant to the Company’s existing employee
benefit plans.
(kk) Each
“forward-looking statement” (within the meaning of Section 27A of the Securities Act or Section 21E of the
Exchange Act) included in the Registration Statement, any Preliminary Prospectus and the Prospectus has been made or reaffirmed with
a reasonable basis and has been disclosed in good faith.
As used in this Agreement,
the term “the Company’s knowledge” (or similar language) shall mean the actual knowledge of the officers of
the Company who are named in the Prospectus with the assumption that such officers shall have made reasonable and diligent inquiry of
the matters presented (with reference to what is customary and prudent for the applicable individuals in connection with the discharge
by the applicable individuals of their duties as officers or directors of the Company).
As used in this Agreement,
references to matters being “material” with respect to the Company or any matter relating to the Company shall mean
a material item, event, change, condition, status or effect related to the condition (financial or otherwise), properties, assets (including
intangible assets), liabilities, business, prospects (as such prospects are disclosed or described in any preliminary prospectus or the
prospectus), operations or results of operations of the company, taken as a whole.
6. Compensation.
(a) In
consideration for its services in the Offering, the Dealer-Manager shall receive (i) a cash fee equal to 7.0% of the gross dollar amount
of any exercise of the Subscription Rights, Oversubscription Privilege and Series Rights by investors in the Offering as a commission
and (ii) an out-of-pocket accountable expense allowance of up to an aggregate amount of $35,000. The Company has previously paid the
Dealer-Manager a $15,000 advance against such accountable expense allowance (the “Advance”). If the Offering is not
consummated, the portion of the Advance not used for the Dealer-Manager’s actual out-of-pocket expenses shall be promptly reimbursed
to the Company as required under FINRA Rule 5110(g)(4)(A). If the Company raises less than $6,250,000 in aggregate through the Offering,
Moody Capital shall credit 1.0% off its 7.0% Dealer-Manager fee so that Dealer-Manager will receive 6.0% instead of the original contemplated
7.0%. All payments to be made by the Company pursuant to this Section 6(a) shall be made at each applicable closing by wire transfer
of immediately available funds upon the consummation of the subscriptions for (1) Units pursuant to Subscription Rights and (2) Common
Stock pursuant to (a) Series A Right Warrant and (b) Series B Right Warrant (each (1), (2(a)) and (2(b)), a “Closing Date”)
(b) Notwithstanding
the foregoing and subject to its entry into an acceptable form of selected dealer agreement(s) with other registered broker-dealers in
connection with the exercise of the Rights, the Dealer-Manager may allocate to any such other registered broker-dealer a selected dealer
fee, constituting a portion of its dealer-manager fee or placement fee, as applicable, equal to 3% of the total gross proceeds paid to
and received by the Company for subscriptions accepted by the Company from clients of such other broker-dealers pursuant to the exercise
of their Rights in the Offering.
(c) [RESERVED].
7. Expenses.
Subject to Section 6 hereof, and notwithstanding anything to the contrary contained in the Engagement Letter, the Company shall pay or
cause to be paid:
(a) all
expenses (including any taxes) incurred by the Company in connection with the Offering and the authorization, preparation, issuance,
execution, authentication and delivery of the Rights and the Shares;
(b) all
fees, expenses and disbursements of the Company’s accountants, legal counsel and other third party advisors;
(c) all
reasonable and documented costs and expenses of the Dealer-Manager as set forth in Section 6 above and reimbursable upon any termination
of this Agreement only as permitted by FINRA Rule 5110(g)(4)(A);
(d) all
agreed-upon fees and expenses of the Subscription Agent and the Information Agent;
(e) all
fees, expenses and disbursements (including, without limitation, fees and expenses of the Company’s accountants and counsel) in
connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements
therein and all amendments and exhibits thereto), each Preliminary Prospectus, the Prospectus, the other Offer Documents and any amendments
or supplements of the foregoing and any printing, delivery and shipping of this Agreement to any organization of soliciting dealers,
if any, to the members thereof by mail, fax or other means of communications;
(f) all
reasonable fees, expenses and disbursements, if any, relating to the registration or qualification of the Rights and the Shares under
the “blue sky” securities laws of any states or other jurisdictions;
(g) all
filing fees of the Commission;
(h) all
filing fees relating to the review of the Offering by FINRA;
(i) any
applicable listing or other fees;
(j) the
cost of printing certificates representing the Units, Rights and the Shares;
(k) the
cost and charges of the Company’s transfer agent(s) or registrar(s); and
(l) all
other costs and expenses incident to the performance of the Company’s obligations hereunder for which provision is not otherwise
made in this Section 7.
All payments to be made by
the Company pursuant to this Section 7 shall be made promptly after the termination or expiration of the Offering or, if later, promptly
after the related fees, expenses or charges accrue and an invoice therefor is sent by the Dealer-Manager. The Company shall perform its
obligations set forth in this Section 7 whether or not the Offering commences or any Rights are exercised pursuant to the Offering, except
that the Dealer-Manager’s non-accountable expenses may only be reimbursed after initial closing. For the avoidance of doubt, except
as reimbursed pursuant to the accountable expense allowance and the non-accountable allowance, the Dealer-Manager shall be responsible
for expenses it incurs with respect to the performance of its obligations under this Agreement, including without limitation expenses
it incurs with respect to travel and lodging expenses in connection with “roadshow” trips and legal counsel and other third
parties engaged by the Dealer-Manager.
8. Stockholder
Lists; Subscription Agent; Information Agent.
(a) The
Company will cause the Dealer-Manager to be provided with any cards or lists showing the names and addresses of, and the number of shares
of Common Stock and the holders of shares of Common Stock as of a recent date and will use its best efforts to cause the Dealer-Manager
to be advised from time to time during the period, as the Dealer-Manager shall request, of the Offering as to any transfers of record
of Common Stock.
(b) The
Company (i) has arranged for the Subscription Agent to serve as subscription and escrow agent in connection with the Offering, (ii) will
arrange for the Subscription Agent to advise the Dealer-Manager regularly as to such matters as the Dealer-Manager may reasonably request,
including the number of Rights that have been exercised, and (iii) will arrange for the Subscription Agent to be responsible for
receiving subscription funds paid.
(c) The
Company has arranged for the Information Agent to serve as the information agent in connection with the Offering (together with the Subscription
Agent, the “Agents”) and to perform services in connection with the Offering that are customary for an information
agent.
9. Covenants
of the Company. The Company covenants and agrees with the Dealer-Manager:
(a) To
use its best efforts to cause the Registration Statement and any amendments thereto to become effective; to advise the Dealer-Manager,
promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment thereto, becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Dealer-Manager with copies thereof; to prepare
a Prospectus in a form approved by the Dealer-Manager (such approval not to be unreasonably withheld or delayed) and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act within the time prescribed by such rule; to advise the Dealer-Manager, promptly after
it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Rights for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to
use promptly its reasonable best efforts to obtain its withdrawal.
(b) To
deliver promptly to the Dealer-Manager, at any such location as requested by the Dealer-Manager, such number of the following documents
as the Dealer-Manager shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission
and each amendment thereto (in each case excluding exhibits other than this Agreement, any other Offer Documents filed as exhibits, the
computation of the ratio of earnings to fixed charges and the computation of per share earnings), (ii) each Preliminary Prospectus, (iii)
the Prospectus and any amended or supplemented Prospectus and (iv) any document incorporated by reference in the Prospectus (excluding
exhibits thereto); and, if the delivery of a prospectus is required at any time during which the Prospectus relating to the Rights, Units
or the Shares is required to be delivered under the Securities Act and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act
or the Exchange Act, to notify the Dealer-Manager and, upon its request, to file such document and to prepare and furnish without charge
to the Dealer-Manager as many copies as the Dealer-Manager may from time to time reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such compliance.
(c) To
file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that
may, in the judgment of the Company or the Dealer-Manager, be necessary or advisable in connection with the distribution of the Rights,
Units or the sale of the Shares or be requested by the Commission.
(d) Prior
to filing with the Commission any: (i) Preliminary Prospectus, (ii) amendment to the Registration Statement, any document incorporated
by reference in the Prospectus or (iii) any Prospectus pursuant to Rule 424 of the Securities Act, to furnish a copy thereof to the Dealer-Manager
and counsel for the Dealer-Manager and obtain the consent, which does not have to be in written form, of the Dealer-Manager to the filing
(which consent shall not be unreasonably withheld).
(e) To
furnish to the Dealer-Manager copies of all materials not available via EDGAR furnished by the Company to its stockholders and all public
reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which any
of the Company’s securities may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission thereunder.
(f) To
qualify or register the Rights, Units and the Shares for sale under (or obtain exemptions from the application of) the state securities
or blue sky laws of those jurisdictions designated by the Dealer-Manager, the Company shall comply with such laws and shall continue
such qualifications, registrations and exemptions in effect so long as required for the distribution of the Rights, Units and the Shares,
as applicable. The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Dealer-Manager promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Rights, Units and the Shares for offering, sale or trading in any jurisdiction or any initiation or threat
of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or
exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(g) To
apply the net proceeds from the exercise of the Rights in the manner described under the caption “Use of Proceeds” in the
Prospectus.
(h) To
list for trading the Shares on Nasdaq and to maintain the listing of the Shares on Nasdaq.
(i) To
take such steps as shall be necessary to ensure that the Company shall not become an “investment company” within the meaning
of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
(j) To
advise the Dealer-Manager, directly or through the Subscription Agent, from time to time, as the Dealer-Manager shall request, of the
number of Shares subscribed for, and arrange for the Subscription Agent to furnish the Dealer-Manager with copies of written reports
it furnishes to the Company concerning the Offering.
(k) To
commence mailing the Offer Documents to record holders of the Common Stock not later than the second (2nd) business day following
the record date for the Offering, and to complete such mailing as soon as practicable.
(l)
To reserve and keep available for issue, upon the exercise of the Rights, such number of authorized but unissued shares of Common Stock
as will be sufficient to permit the exercise in full of all Rights, except as otherwise contemplated by the Prospectus.
(m) To
not take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the issuance of the
Rights or the sale or resale of the Shares, including during the Offering.
10. Conditions
of Dealer-Manager’s Obligations. The obligations of the Dealer-Manager hereunder are subject to (and the occurrence of any
closing shall be conditioned upon) the accuracy, as of the date hereof and at all times during the Offering, of the representations and
warranties of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional
conditions:
(a) (i)
The Registration Statement shall have become effective and the Prospectus shall have been timely filed with the Commission in accordance
with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective; (iii) no stop
order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto shall have been issued and no
proceedings for the issuance of any such order shall have been initiated or threatened, and (iv) any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Dealer-Manager
and complied with to the Dealer-Manager’s reasonable satisfaction.
(b) The
Dealer-Manager shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration
Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Manager’s
opinion, or in the opinion of counsel to the Dealer-Manager, is material, or omits to state a fact which, in the Dealer-Manager’s
opinion, or in the opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or is necessary to make
the statements therein not misleading and that has not been corrected or disclosed in one or more amendments to the Registration Statement
or the Prospectus.
(c) All
corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Units,
the Shares, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Manager, and the Company shall
have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) On
the closing of the Units pursuant to the Subscription Rights, there shall have been furnished to the Dealer-Manager the signed opinion
and negative assurance letter (addressed to the Dealer-Manager) of Morgan, Lewis & Bockius LLP, counsel for the Company, dated as
of such date and in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(e) The
Company shall have furnished to the Dealer-Manager a certificate, dated as of each Closing Date, of its Chief Executive Officer and Chief
Financial Officer stating that:
| |
i. |
To their knowledge after reasonable investigation, the representations, warranties,
covenants and agreements of the Company hereof are true and correct in all material respects; |
| |
ii. |
The conditions to closing set forth in this Agreement have been fulfilled; |
| |
iii. |
The Company has not sustained any material loss or interference with its business,
whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding; |
| |
iv. |
Subsequent to the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any Material Adverse Change; and |
| |
v. |
They have carefully examined the Registration Statement and the Prospectus and,
in their opinion (A) the Registration Statement and the Prospectus, as of the Effective Date, did not include any untrue statement
of a material fact and did not omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date, no event has occurred which should have been set forth in a supplement
or amendment to the Registration Statement or the Prospectus. |
(f) No
event has occurred at the Company since the date of the latest audited financial statements included in the Prospectus any Material Adverse
Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable
to proceed with the Offering.
(g)
Neither FINRA nor Nasdaq shall have objected to the Offering.
(h) The
Common Stock shall then be listed and trading on Nasdaq and, prior to their issuance, Nasdaq shall have approved the listing of the Shares,
subject only to official notice of issuance.
(i) All
opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Dealer-Manager. If any of the
conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all
obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Offering by the Dealer-Manager. Any such cancellation
shall be without liability of the Dealer-Manager to the Company. Notice of such cancellation shall be given the Company in writing, or
by telegraph or telephone and confirmed in writing.
11. Indemnification
and Contribution.
(a)
The Company agrees to indemnify and hold harmless the Dealer-Manager and its affiliates and any officer, director, employee or agent
of the Dealer-Manager or any such affiliates and any Person controlling (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act) the Dealer-Manager or any of such affiliates (collectively, the “Indemnified Parties”) from
and against any and all losses, claims, damages, liabilities, expenses and actions (including stockholder actions, in respect thereof)
whatsoever, under the Securities Act or otherwise (as incurred or suffered and including, but not limited to, any and all legal or other
expenses incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced
or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after
receipt of any invoices therefore from the Dealer-Manager), (A) arising out of or based upon: (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any amendment thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading (other
than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information), (ii) any untrue statement
or alleged untrue statement of a material fact contained in any Offer Document not the Registration Statement (or any amendment or supplement
thereto), in any other solicitation material used by the Company or authorized by it for use in connection with the Offering, or in any
blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the Rights, Units or the Shares under the securities laws of any state or other
jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or
arising out of or based upon the omission or alleged omission to state in any such document 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 (other
than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information), (iii) any withdrawal or termination
by the Company of, or failure by the Company to make or consummate, the Offering, (iv) any actions taken or omitted to be taken by the
Indemnified Party with the express consent of the Company or in conformity with actions taken or omitted to be taken by the Company,
(v) any failure by the Company to comply with any agreement or covenant contained in this Agreement, or (vi) any claim or action brought
by any broker-dealer, or any affiliates of a broker-dealer, asserting breach of any right of first refusal or other similar rights under
any prior agreement with the Company, or (B) arising out of, relating to or in connection with or alleged to arise out of, relate to
or be in connection with, the Offering, any of the other transactions or contemplated thereby or the performance of the Dealer-Manager’s
services to the Company with respect to the Offering and pursuant to ancillary agreements contemplated thereby; provided, however,
that in the case of clause (B) only, the Company shall not be responsible for any losses, claims, damages, liabilities, or expenses and
actions of and Indemnified Party that have resulted primarily from such Indemnified Party’s (x) gross negligence, bad faith or
willful misconduct in connection with any of the advice, actions, inactions or services referred to herein or (y) use of any offering
materials or information concerning the Company in connection with the Offering that were not authorized for such use by the Company
and which use constitutes gross negligence, bad faith or willful misconduct.
(b) Promptly
after receipt by an Indemnified Party of notice of any intention to commence an action, suit or proceeding or notice of the commencement
of any action, suit or proceeding, such Indemnified Party will, if a claim in respect thereof is to be made against in respect of any
matter for which indemnity may be sought pursuant hereto, promptly notify the Company in writing of the same. The Company shall, if requested
by an Indemnified Party, assume control of the defense of any such claim including the employment of counsel reasonably satisfactory
to the Indemnified Party, which counsel may also be counsel to the Company. An Indemnified Party may employ counsel to participate in
the defense of any such action provided, that the employment of such counsel shall be at the Indemnified Party’s own expense, unless
(i) the employment of such counsel has been authorized in writing by the Company, (ii) the Indemnified Party has reasonably concluded
(based upon advice of counsel to the Indemnified Party) that there may be legal defenses available to it or other Indemnified Parties
that are different from or in addition to those available to the Company, or that a conflict or potential conflict exists (based upon
advice of counsel to the Indemnified Party) between the Indemnified Party and the Company that makes it impossible or inadvisable for
counsel to the Indemnifying Party to conduct the defense of both the Company and the Indemnified Party (in which case the Company will
not have the right to direct the defense of such action on behalf of the Indemnified Party), or (iii) the Company has not in fact employed
counsel reasonably satisfactory to the Indemnified Party to assume the defense of such action within a reasonable time after receiving
notice of the action, suit or proceeding, in each of which cases the reasonable fees, disbursements and other charges of such counsel
will be at the expense of the Company; provided, further, that in no event shall the Company be required to pay
fees and expenses for more than one firm of attorneys representing Indemnified Parties unless the defense of one Indemnified Party is
unique or separate from that of another Indemnified Party subject to the same claim or action. Any failure or delay by an Indemnified
Party to give the notice referred to in this paragraph may affect such Indemnified Party’s right to be indemnified hereunder to
the extent that such failure or delay prejudices the Company’s ability to defend such action, suit or proceeding on behalf of such
Indemnified Party, or otherwise results in harm to the Company.
(c) If
the indemnification provided for in Section 11(a) is judicially determined to be unavailable (other than in accordance with the terms
hereof) to any Indemnified Party otherwise entitled to indemnity in respect of any losses, claims, damages or liabilities referred to
herein, then, in lieu of indemnifying such person hereunder, whether or not the Dealer-Manager is the person entitled to indemnification
or reimbursement, the Company shall contribute to the amount paid or payable by the Indemnified Party as a result of such losses, claims,
damages or liabilities (and expenses relating thereto) (i) in such proportion as is appropriate to reflect the relative benefits to the
Company, on the one hand, and the Dealer-Manager, on the other hand, of the Offering or (ii) if the allocation provided for in clause
(i) above is not available, in such proportion as is appropriate to reflect not only the relative benefits referred to in such clause
(i) but also the relative fault of each of the Company and the Dealer-Manager, as well as any other relevant equitable considerations;
provided, however, in no event shall the Dealer-Manager’s aggregate contribution to the amount paid or payable exceed the aggregate
amount of fees actually received by the Dealer-Manager under this Agreement. For the purposes of this Agreement, the relative benefits
to the Company and to the Dealer-Manager of the engagement shall be deemed to be in the same proportion as (a) the total value paid or
contemplated to be paid or received or contemplated to be received by the Company in the Offering, whether or not the Offering is consummated,
bears to (b) the fees paid or to be paid to the Dealer-Manager under this Agreement.
(d) The
Company also agrees that neither the Dealer-Manager, nor any other Indemnified Party, shall have any liability to the Company for or
in connection with the Dealer-Manager’s engagement as Dealer-Manager, except for any such liability for losses, claims, damages,
liabilities or expenses incurred by the Company which have resulted primarily from the Dealer-Manager’s or Indemnified Party’s
bad faith, willful misconduct, or gross negligence or the use of any offering material or information concerning the Company in connection
with the Offering which were not authorized for such use. The foregoing agreement shall be in addition to any rights that the Dealer-Manager,
the Company or any Indemnified Party may have at common law or otherwise, including, but not limited to, any right to contribution.
(e) The
Company agrees that it will not, without the prior written consent of the Dealer-Manager, which consent shall not be unreasonably withheld,
settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought hereunder (whether or not the Dealer-Manager is an actual or potential
party to such claim, action, suit or proceeding) unless such settlement, compromise or consent (i) relates solely to the payment of monetary
damages and does not include any admission of liability on the part of the Dealer-Manager, and (ii) includes an unconditional release,
reasonably satisfactory in form and substance to the Dealer-Manager, releasing the Dealer-Manager from all liability arising out of such
claim, action, suit or proceeding.
(f) The
Company agrees to reimburse each Indemnified Party for all expenses as they are incurred in connection with enforcing such Indemnified
Party’s rights hereunder.
12. Effective
Date of Agreement; Termination.
(a) This
Agreement shall become effective upon the later of the time on which the Dealer-Manager shall have received notification of the effectiveness
of the Registration Statement and the time which this Agreement shall have been executed by all of the parties hereto.
(b) This
Agreement shall terminate upon the earliest to occur of (i) the consummation, termination or withdrawal of the Offering or (ii) withdrawal
by the Dealer-Manager pursuant to Section 4.
(c)
Any termination of this Agreement pursuant to this Section 12 shall be without liability on the part of the Company or the Dealer-Manager,
except as otherwise provided in Section 11 hereof. Any notice referred to above may be given pursuant to Section 14 hereof.
13. Survival
of Certain Provisions. The agreements contained in Sections 3, 6, 7, 11 and 13 through 22 hereof and the representations, warranties
and agreements of the Company contained in Section 5 hereof shall survive the consummation of or failure to commence the Offering and
shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or
on behalf of any indemnified party; provided that the Company’s obligations under Section 7 to reimburse the Dealer-Manager
for accountable expenses are subject to FINRA Rule 5110 (g)(4)(A) in that such expenses are only reimbursable to the extent actually
incurred and only if the Offering actually closes.
14. Notices.
All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to
have been duly given and effective upon receipt if (a) delivered personally, (b) sent by email transmission, or (c) sent by
nationally recognized overnight courier, to the parties hereto as follows:
If to the Dealer-Manager:
Moody Capital Solutions,
Inc.
2458 Dunkerrin Lane
Atlanta, GA 30360
Attention: Mr. Richard H.
Kreger, Senior Managing Director
Email: rkreger@moodycapital.com
With a copy (which shall
not constitute notice) to:
Olshan Frome Wolosky LLP
1325 Avenue of the Americas,
15th Floor
New York, New York 10019
Attention: Spencer G. Feldman,
Esq.
Email: sfeldman@olshanlaw.com
If to the Company:
Phillip P. Chan, MD
Chief Executive Officer
305 College Road
East Princeton, New Jersey
08540
Email: PChan@cytosorbents.com
With a copy (which shall
not constitute notice) to:
Morgan, Lewis & Bockius
LLP
502 Carnegie Center, Suite 201
Princeton, New Jersey
Attention: David C. Schwartz
Email: david.schwartz@morganlewis.com
15. Parties.
This Agreement shall inure to the benefit of and be binding upon the Dealer-Manager, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only those Persons, except that the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the Person or Persons,
if any, who control the Dealer-Manager within the meaning of Section 15 of the Securities Act. Nothing in this Agreement shall be construed
to give any Person, other than the Persons referred to in this Section, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
16. Amendment.
This Agreement may not be amended or modified except in writing signed by each of the parties hereto.
17. Governing
Law; Venue. This Agreement shall be deemed to have been executed and delivered in New York and both this Agreement and the transactions
contemplated hereby shall be governed as to validity, interpretation, construction, effect, and in all other respects by the laws of
the State of New York, without regard to the conflicts of laws principles thereof (other than Section 5-1401 of The New York General
Obligations Law). Each of the Dealer-Manager and the Company: (a) agrees that any legal suit, action or proceeding arising out of or
relating to this Agreement and/or the transactions contemplated hereby shall be instituted exclusively in the Supreme Court of the State
of New York, New York County, or in the United States District Court for the Southern District of New York, (b) waives any objection
which it may have or hereafter to the venue of any such suit, action or proceeding, and (c) irrevocably consents to the jurisdiction
of Supreme Court of the State of New York, New York County, or in the United States District Court for the Southern District of New York
in any such suit, action or proceeding. Each of the Dealer-Manager and the Company further agrees to accept and acknowledge service of
any and all process which may be served in any such suit, action or proceeding in the Supreme Court of the State of New York, New York
County, or in the United States District Court for the Southern District of New York and agrees that service of process upon the Company
mailed by certified mail to the Company’s address or delivered by Federal Express via overnight delivery shall be deemed in every
respect effective service of process upon the Company, in any such suit, action or proceeding, and service of process upon the Dealer-Manager
mailed by certified mail to the Dealer-Manager’s address or delivered by Federal Express via overnight delivery shall be deemed
in every respect effective service process upon the Dealer-Manager, in any such suit, action or proceeding. THE COMPANY (ON BEHALF OF
ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT, ANY PRELIMINARY PROSPECTUS AND THE PROSPECTUS.
18. Entire
Agreement. This Agreement, together with the exhibit attached hereto, as the same may be amended from time to time in accordance
with the terms hereof, contains the entire agreement among the parties hereto relating to the subject matter hereof and there are no
other or further agreements outstanding not specifically mentioned herein. Notwithstanding anything herein to the contrary, the
Engagement Letter shall continue to be effective and the terms therein shall continue to survive and be enforceable by the parties thereto
in accordance with its terms.
19. Assignment.
Neither this Agreement nor any right or interest hereunder shall be assignable by the Company or the Dealer-Manager without the prior
written consent of the other party hereto; provided, however, that nothing in this Section 19 shall preclude
the Dealer-Manager from (i) assigning any rights hereunder to a corporation or other entity acquiring all or substantially all the assets
and business, whether by operation of law or otherwise, of the Dealer-Manager, provided such entity is a registered broker-dealer, or
(ii) designating another broker-dealer to perform services hereunder if the Dealer-Manager is unable to do so, provided such firm includes
some or all of the Dealer-Manager’s former investment banking staff, and such firm becomes subject to the same obligations and
responsibilities as the Dealer-Manager as contemplated herein as it relates to the delegated services.
20. Severability.
If any term or provision of this Agreement or the performance thereof shall be invalid or unenforceable to any extent, such invalidity
or unenforceability shall not affect or render invalid or unenforceable any other provision of this Agreement and this Agreement shall
be valid and enforced to the fullest extent permitted by law.
21. Headings.
The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
22. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile or other electronic
transmission (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com)
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature Page Follows]
If the foregoing correctly
sets forth your understanding, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute
a binding agreement among us.
| |
Very truly yours, |
| |
|
| |
CYTOSORBENTS CORPORATION |
| |
|
| |
By: |
/s/ Peter J. Mariani |
| |
Name: |
Peter J. Mariani |
| |
Title: |
Chief Financial Officer |
| Accepted and Agreed as of |
|
| the date first written above: |
|
| |
|
| MOODY CAPITAL SOLUTIONS, INC. |
|
| |
|
| By: |
/s/ Richard H. Kreger |
|
| Name: |
Richard H. Kreger |
|
| Title: |
Senior Managing Director |
|
[Signature Page to Dealer-Manager Agreement]
Exhibit 4.1
| RIGHTS CERTIFICATE
#: | |
NUMBER OF
RIGHTS |
THE TERMS AND CONDITIONS
OF THE RIGHTS OFFERING ARE SET FORTH IN THE COMPANY'S PROSPECTUS
DATED _____ __, 2024 (THE "PROSPECTUS")
AND ARE INCORPORATED HEREIN BY REFERENCE. COPIES OF
THE PROSPECTUS ARE AVAILABLE UPON REQUEST
FROM D.F. KING & CO., INC., THE INFORMATION AGENT.
CytoSorbents
Corporation
Incorporated
under the laws of the State of Delaware
NON - TRANSFERABLE
SUBSCRIPTION RIGHT WARRANT CERTIFICATE
Evidencing non-transferable
Subscription Right Warrants, each to purchase one Unit, each Unit consisting of one share of Common Stock, one Series A Right Warrant
and one Series B Right Warrant
Subscription
Price: $1.00 per Unit
THE
SUBSCRIPTION RIGHTS WILL EXPIRE IF NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME,
ON _______ __, 2025, SUBJECT TO EXTENSION
OR EARLIER TERMINATION
REGISTERED
OWNER:
THIS CERTIFIES THAT the registered owner whose name is inscribed hereon
is the owner of the number of non-transferable subscription right warrants (“Rights”) set forth above. Each whole Right entitles
the holder thereof to subscribe for and purchase one Unit (“Units”), each Unit consisting of one share of Common Stock, one
Series A right warrant to purchase one shares of Common Stock (“Series A Right Warrants”), and one Series B right warrant
to purchase one shares of Common Stock (“Series B Right Warrants” and, together with the Series A Right Warrants, the “Right
Warrants”), of CytoSorbents Corporation, a Delaware corporation, at a subscription price of $1.00 per Unit (the “Basic Rights”),
pursuant to a rights offering (the “Rights Offering”), on the terms and subject to the conditions set forth in the Prospectus
and the “INSTRUCTIONS AS TO USE OF CYTOSORBENTS CORPORATION NON-TRANSFERABLE SUBSCRIPTION RIGHT WARRANT CERTIFICATES ” accompanying
this Non-Transferable Subscription Right Warrant Certificate. If any Units available for purchase in the Rights Offering are not purchased
by other holders of Rights pursuant to the exercise of their Basic Rights (the “Excess Shares”), any Rights holder that exercises
its
Basic Rights in full may subscribe for a number of Excess Shares pursuant to the terms and conditions of the Rights Offering, subject
to proration, as described in the Prospectus (the “Oversubscription Privilege”). The Rights represented by this Non-Transferable
Subscription Right Warrant Certificate may be exercised by completing Form 1 and any other appropriate forms on the reverse side hereof
and by retuning the full payment of the subscription price for each Unit in accordance with the “INSTRUCTIONS AS TO USE OF CYTOSORBENTS
CORPORATION NON-TRANSFERABLE SUBSCRIPTION RIGHT WARRANT CERTIFICATES” that accompany this Non-Transferable Subscription Right Warrant
Certificate.
COUNTERSIGNED AND REGISTERED
EQUINITI TRUST COMPANY,
LLC
TRANSFER AGENT AND REGISTRAR
AUTHORIZED SIGNATURE
This Non-Transferable Subscription Right Warrant Certificate is not
valid unless countersigned by the subscription agent and registered by the registrar. Witness the seal of CytoSorbents Corporation and
the signatures of its duly authorized officers.
Dated:
| |
Chief Executive Officer | |
Executive
Vice President, |
|
| |
and Principal
Executive Officer | |
General
Counsel and Secretary |
|
DELIVERY OPTIONS FOR NON-TRANSFERABLE SUBSCRIPTION
RIGHT WARRANT CERTIFICATE
Delivery other than in the
manner or to the addresses listed below will not constitute valid delivery.
If delivering by hand:
Equiniti Trust Company, LLC
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
If delivering by mail or overnight courier:
Equiniti Trust Company, LLC
Operations Center
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
PLEASE PRINT ALL INFORMATION
CLEARLY AND LEGIBLY.
FORM 1-EXERCISE OF SUBSCRIPTION
RIGHTS
To subscribe for Units pursuant
to your Basic Right, please complete lines (a) and (c) and sign under Form 4 below. To subscribe for Units pursuant to your Oversubscription
Privilege, please also complete line (b) and sign under Form 4 below. To the extent you subscribe for more Units than you are entitled
under either the Basic Right or the Oversubscription Privilege, you will be deemed to have elected to purchase the maximum number of
Units for which you are entitled to subscribe under the Basic Right or Oversubscription Privilege, as applicable.
(a) EXERCISE OF BASIC RIGHT:
I apply for ____________
(no.
of new units) |
Units x $ 1.00
(subscription price) |
= $_____________
(amount
enclosed) |
(b) EXERCISE OF OVERSUBSCRIPTION
PRIVILEGE
If you have exercised your
Basic Right in full and wish to subscribe for additional Units pursuant to your Oversubscription Privilege:
I apply for ____________
(no.
of new units) |
Units x $ 1.00
(subscription price) |
= $_____________
(amount
enclosed) |
(c) Total
Amount of Payment Enclosed = $ ____________
METHOD OF PAYMENT (CHECK ONE)
| ¨ | Check
or bank draft payable to “Equiniti Trust Company, LLC as Subscription Agent.” |
| | |
| ¨ | Wire transfer of immediately available funds directly to the account
maintained by Equiniti Trust Company, LLC, as Subscription Agent, for purposes of accepting subscriptions in this Rights Offering at ______________Bank,
ABA #_________ or Swift Code: ____________, Account # ___________ Equiniti Trust Company, LLC FBO _______ Corporation, with reference
to the rights holder's name. |
FORM 2-TRANSFER TO DESIGNATED
TRANSFEREE
To transfer your subscription
rights to another person, complete this Form 2 and have your signature guaranteed under Form 5.
For value received ______________
of the subscription rights represented by this Non-Transferable Subscription
Rights Warrant Certificate are assigned to:
| Social Security # |
|
| |
| Signature(s): |
|
IMPORTANT: The signature(s) must correspond with the name(s) as printed on the
reverse of this Non-Transferable Subscription Rights Warrant Certificate in every particular, without alteration or enlargement, or any
other change whatsoever.
FORM 3-DELIVERY TO DIFFERENT ADDRESS
If you wish for the Units underlying your subscription rights, a certificate
representing unexercised subscription rights or the proceeds of any sale of subscription rights to be delivered to an address different
from that shown on the face of this Non-Transferable Subscription Right Warrant Certificate, please enter the alternate address below,
sign under Form 4 and have your signature guaranteed under Form 5.
FORM 4-SIGNATURE
TO SUBSCRIBE: I acknowledge that I have received
the Prospectus for this Rights Offering and I hereby irrevocably subscribe for the number of Units indicated above on the terms and conditions
specified in the Prospectus. By signing below I confirm that (1) after giving effect to the exercise of my Rights, I will not beneficially
own, as determined in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended, more than 14.99% of the Company’s
outstanding shares of Common Stock (calculated immediately upon the closing of the rights offering) and (2), if I already beneficially
own, as determined in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended, in excess of 14.99% of the Company’s
outstanding shares of Common Stock I will not, via the exercise of the Rights, increase my proportionate interest in the Company’s
Common Stock (with respect to (1) or (2), any such excess shares, the “Excess Shares”). With respect to any such Excess Shares,
I hereby (1) irrevocably appoint and constitute the Company, each of its authorized officers and their designees, and each of them, with
full power of substitution, as my proxy and attorney in fact with full authority to vote and act by written consent with respect to any
such Excess Shares on any matter submitted to shareholders for a vote or action by written consent, in the discretion of such proxy,
to the same extent I would have the power to vote or act by written consent and (2) grant the Company a right for 90 days from the closing
of the rights offering to repurchase such Excess Shares at the lesser of the $1.00 per share subscription price and the closing price
of the Company’s Common Stock on The Nasdaq Stock Market LLC the trading day immediately prior to the date on which notice is sent
to the holder of the Company’s intent to exercise such right, which notice must be sent prior to the expiration of such 90 day
period. I agree to cooperate with the Company and provide to the Company any and all information requested by the Company in connection
with the exercise of the rights granted in the previous sentence.
IMPORTANT: The signature(s) must correspond with the name(s) as printed on the
reverse of this Non-Transferable Subscription Right Warrant Certificate in every particular, without alteration or enlargement, or any
other change whatsoever.
FORM 5-SIGNATURE GUARANTEE
This form must be completed if you have completed any portion
of Forms 2 or 3.
| Signature Guaranteed: |
|
| |
(Name of Bank or Firm) |
| By: |
|
| |
(Signature of Officer) |
IMPORTANT: The signature(s) should
be guaranteed by an eligible guarantor institution (bank, stock broker, savings & loan association or credit union) with membership
in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.
FOR INSTRUCTIONS ON THE USE OF THIS NON-TRANSFERABLE
SUBSCRIPTION RIGHT WARRANT CERTIFICATE, CONSULT D.F. KING & CO., INC., THE INFORMATION AGENT, AT (800) 549-6864 FOR BANKS
AND BROKERS OR CALL TOLL-FREE AT (212) 269-5550 .
Exhibit 4.2
| RIGHTS CERTIFICATE
#: | |
NUMBER OF
RIGHTS |
THE TERMS AND CONDITIONS
OF THE RIGHTS OFFERING ARE SET FORTH IN THE COMPANY'S PROSPECTUS
DATED _____
__, 2024 (THE "PROSPECTUS") AND ARE INCORPORATED HEREIN BY REFERENCE. COPIES OF
THE PROSPECTUS ARE AVAILABLE UPON REQUEST
FROM D.F. KING & CO., INC., THE INFORMATION AGENT.
CytoSorbents
Corporation
Incorporated
under the laws of the State of Delaware
TRANSFERABLE SERIES A RIGHT WARRANT CERTIFICATE
Evidencing transferable Series A Right Warrants,
each to purchase one share of Common Stock
Exercise
Price: as determined below
THE
SERIES A RIGHT WARRANT WILL EXPIRE IF NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME,
ON _______ __, 2025,
SUBJECT TO EXTENSION OR EARLIER TERMINATION
REGISTERED
OWNER:
THIS
CERTIFIES THAT the registered owner whose name is inscribed hereon is the owner of the number of transferable Series A Right Warrants
(“Series A Right Warrants”) set forth above. Each Series A Right Warrant entitles the holder thereof to purchase
one share of common stock of CytoSorbents Corporation, a Delaware corporation (the “Company”), at an exercise price equal
to 90% of the 5-day volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series A
Right Warrants, rounded down to the nearest whole cent but (x) not lower than $1.00 and (y) not higher than $2.00, which is
45 days following the closing date of the subscription offering, with the exercise price rounded down to the nearest whole cent, and
on the terms and subject to the conditions set forth in the Prospectus and the “FORM OF INSTRUCTIONS AS TO USE OF CYTOSORBENTS
CORPORATION TRANSFERABLE SERIES A RIGHT WARRANT CERTIFICATES” accompanying this Transferable Series A Right Warrant Certificate.
The
maximum number of shares of Common Stock of the Company available for issuance in the rights offering is 12,500,000 shares. If at any
time the issuance of shares of Common Stock pursuant to the exercise of this Series A Right Warrant would exceed such share limitation,
this Series A Right Warrant will immediately expire worthless.
Even if you exercise your Series A Right
Warrants in full, you will not be entitled to any oversubscription privilege with respect to the Series A Right Warrants. The Series
A Right Warrants represented by this Transferable Series A Right Warrant Certificate may be exercised by completing the appropriate forms
on the reverse side hereof and by returning the initial maximum amount. The Subscription Agent will return to the subscriber any excess
funds submitted as soon as practicable, without interest or deduction, once the exercise price is determined in accordance with the above.
This Transferable Series A Right Warrant Certificate is not valid unless countersigned by Equiniti Trust Company, LLC, the Subscription
Agent. The Rights represented by this Transferable Series A Right Warrant Certificate may be exercised by completing Form 1 and any other
appropriate forms on the reverse side hereof and by retuning the full payment of the exercise price for each Series A Right Warrant in
accordance with the “FORM OF INSTRUCTIONS AS TO USE OF CYTOSORBENTS CORPORATION TRANSFERABLE SERIES A RIGHT WARRANT CERTIFICATES”
that accompany this Transferable Series A Right Warrant Certificate.
COUNTERSIGNED
AND REGISTERED
EQUINITI
TRUST COMPANY, LLC
TRANSFER
AGENT AND REGISTRAR
AUTHORIZED
SIGNATURE
This
Transferable Series A Right Warrant Certificate is not valid unless countersigned by the subscription agent and registered by the registrar.
Witness the seal of CytoSorbents Corporation and the signatures of
its duly authorized officers.
Dated:
| |
Chief Executive Officer | |
Executive
Vice President, |
|
| |
and Principal
Executive Officer | |
General
Counsel and Secretary |
|
DELIVERY OPTIONS FOR TRANSFERABLE SERIES A RIGHT
WARRANT CERTIFICATE
Delivery other than in the
manner or to the addresses listed below will not constitute valid delivery.
If
delivering by hand:
Equiniti Trust Company, LLC
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
If
delivering by mail or overnight courier:
Equiniti Trust Company, LLC
Operations Center
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
PLEASE PRINT ALL INFORMATION
CLEARLY AND LEGIBLY.
FORM 1-EXERCISE OF SERIES
A RIGHT WARRANT
You have been allocated the
number of Series A Right Warrants shown on this Transferable Series A Right Warrant Certificate. To exercise your Series A
Right Warrants, please complete the following and sign under Form 4 below.
(a) EXERCISE OF SERIES A RIGHT
WARRANT:
| I
exercise ____________ |
Series A Right Warrants x
$_______ |
= |
$_____________ |
| (no.
of right warrants) |
(exercise
price) |
|
|
(B) Total Amount of Payment
Enclosed = $__________________
METHOD OF PAYMENT (CHECK ONE)
| ¨ | Check
or bank draft payable to “Equiniti Trust Company, LLC as Subscription Agent.” |
| | | |
| ¨ | Wire
transfer of immediately available funds directly to the account maintained by Equiniti Trust
Company, LLC, as Subscription Agent, for purposes of accepting subscriptions in this Rights
Offering at _______ Bank, ABA # _______
or Swift Code: _______, Account # _______ Equiniti Trust Company, LLC FBO _______ Corporation,
with reference to the rights holder's name. |
FORM 2-TRANSFER TO DESIGNATED
TRANSFEREE
To transfer your Transferable
Series A Right Warrant Certificate to another person, complete this Form 2 and have your signature guaranteed under Form 5.
For value received ______________
of the Series A Right Warrants represented by this Transferable Series A Right Warrant Certificate are assigned to:
| Social Security # |
|
| |
| Signature(s): |
|
IMPORTANT: The signature(s)
must correspond with the name(s) as printed on the reverse of this Transferable Series A Right Warrant Certificate in every particular,
without alteration or enlargement, or any other change whatsoever.
FORM 3-DELIVERY TO DIFFERENT ADDRESS
If you wish for the shares of the
Company’s Common Stock underlying your Series A Right Warrants, a certificate representing unexercised Series A Right Warrants
or the proceeds of any sale of Series A Right Warrants to be delivered to an address different from that shown on the face of this Transferable
Series A Right Warrant Certificate, please enter the alternate address below, sign under Form 4 and have your signature guaranteed under
Form 5.
FORM 4-SIGNATURE
TO SUBSCRIBE: I acknowledge
that I have received the Prospectus for this Rights Offering and I hereby irrevocably exercise the number of Series A Right Warrants
indicated above on the terms and conditions specified in the Prospectus. By signing below I confirm that (1) after giving effect to the
exercise of my Series A Right Warrants, I will not beneficially own, as determined in accordance with Rule 13d-3 under the Securities
Exchange Act of 1934, as amended, more than 14.99% of the Company’s outstanding shares of Common Stock (calculated immediately
upon the closing of the rights offering) and (2), if I already beneficially own, as determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, in excess of 14.99% of the Company’s outstanding shares of Common Stock I will not,
via the exercise of the Series A Right Warrants, increase my proportionate interest in the Company’s Common Stock (with respect
to (1) or (2), any such excess shares, the “Excess Shares”). With respect to any such Excess Shares, I hereby (1) irrevocably
appoint and constitute the Company, each of its authorized officers and their designees, and each of them, with full power of substitution,
as my proxy and attorney in fact with full authority to vote and act by written consent with respect to any such Excess Shares on any
matter submitted to shareholders for a vote or action by written consent, in the discretion of such proxy, to the same extent I would
have the power to vote or act by written consent and (2) grant the Company a right for 90 days from the closing of the rights offering
to repurchase such Excess Shares at the lesser of the exercise price and the closing price of the Company’s Common Stock on The
Nasdaq Stock Market LLC the trading day immediately prior to the date on which notice is sent to the holder of the Company’s intent
to exercise such right, which notice must be sent prior to the expiration of such 90 day period. I agree to cooperate with the Company
and provide to the Company any and all information requested by the Company in connection with the exercise of the rights granted in
the previous sentence.
IMPORTANT: The signature(s) must
correspond with the name(s) as printed on the reverse of this Transferable Series A Right Warrant Certificate in every particular, without
alteration or enlargement, or any other change whatsoever.
FORM 5-SIGNATURE GUARANTEE
This form must be completed if you have completed any portion
of Forms 2 or 3.
| Signature Guaranteed: |
|
| |
(Name of Bank or Firm) |
| By: |
|
| |
(Signature of Officer) |
IMPORTANT: The signature(s) should
be guaranteed by an eligible guarantor institution (bank, stock broker, savings & loan association or credit union) with membership
in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.
FOR INSTRUCTIONS ON THE USE
OF THIS TRANSFERABLE SERIES A RIGHT WARRANT CERTIFICATE, CONSULT D.F. KING & CO., INC., THE INFORMATION AGENT, AT (800)
549-6864 FOR BANKS AND BROKERS OR CALL TOLL-FREE AT (212) 269-5550.
Exhibit 4.3
| RIGHTS CERTIFICATE
#: | |
NUMBER OF
RIGHTS |
THE TERMS AND CONDITIONS
OF THE RIGHTS OFFERING ARE SET FORTH IN THE COMPANY'S PROSPECTUS
DATED _____
__, 2024 (THE "PROSPECTUS") AND ARE INCORPORATED HEREIN BY REFERENCE. COPIES OF
THE PROSPECTUS
ARE AVAILABLE UPON REQUEST FROM D.F. KING & CO., INC., THE INFORMATION AGENT.
CytoSorbents
Corporation
Incorporated
under the laws of the State of Delaware
TRANSFERABLE SERIES B RIGHT WARRANT
CERTIFICATE
Evidencing transferable Series B Right Warrants,
each to purchase one share of Common Stock
Exercise
Price: as determined below
THE
SERIES B RIGHT WARRANT WILL EXPIRE IF NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME,
ON
_______ __, 2025, SUBJECT TO EXTENSION OR EARLIER TERMINATION
REGISTERED
OWNER:
THIS
CERTIFIES THAT the registered owner whose name is inscribed hereon is the owner of the number of transferable Series B Right Warrants
(“Series B Right Warrants”) set forth above. Each Series B Right Warrant entitles the holder thereof to purchase one share
of common stock of CytoSorbents Corporation, a Delaware corporation (the “Company”), at an exercise price equal to 90% of
the 5-day volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series B Right
Warrants, rounded down to the nearest whole cent but (x) not lower than $1.00 and (y) not higher than $2.00, which is 45 days
following the closing date of the subscription offering, with the exercise price rounded down to the nearest whole cent, and on the terms
and subject to the conditions set forth in the Prospectus and the “FORM OF INSTRUCTIONS AS TO USE OF CYTOSORBENTS CORPORATION TRANSFERABLE
SERIES B RIGHT WARRANT CERTIFICATES” accompanying this Transferable Series B Right Warrant Certificate.
The
maximum number of shares of Common Stock of the Company available for issuance in the rights offering is 12,500,000 shares. If at any
time the issuance of shares of Common Stock pursuant to the exercise of this Series B Right Warrant would exceed such share limitation,
this Series B Right Warrant will immediately expire worthless.
Even if you exercise your Series B Right
Warrants in full, you will not be entitled to any oversubscription privilege with respect to the Series B Right Warrants. The Series
B Right Warrants represented by this Transferable Series B Right Warrant Certificate may be exercised by completing the appropriate forms
on the reverse side hereof and by returning the initial maximum amount. The Subscription Agent will return to the subscriber any excess
funds submitted as soon as practicable, without interest or deduction, once the exercise price is determined in accordance with the above.
This Transferable Series B Right Warrant Certificate is not valid unless countersigned by Equiniti Trust Company, LLC, the Subscription
Agent. The Rights represented by this Transferable Series B Right Warrant Certificate may be exercised by completing Form 1 and any other
appropriate forms on the reverse side hereof and by retuning the full payment of the exercise price for each Series B Right Warrant in
accordance with the “FORM OF INSTRUCTIONS AS TO USE OF CYTOSORBENTS CORPORATION TRANSFERABLE SERIES B RIGHT WARRANT CERTIFICATES”
that accompany this Transferable Series B Right Warrant Certificate.
COUNTERSIGNED
AND REGISTERED
EQUINITI
TRUST COMPANY, LLC
TRANSFER
AGENT AND REGISTRAR
AUTHORIZED
SIGNATURE
This
Transferable Series B Right Warrant Certificate is not valid unless countersigned by the subscription agent and registered by the registrar.
Witness
the seal of CytoSorbents Corporation and the signatures of its duly authorized officers.
Dated:
| |
Chief Executive Officer | |
Executive
Vice President, |
|
| |
and Principal
Executive Officer | |
General
Counsel and Secretary |
|
DELIVERY OPTIONS FOR TRANSFERABLE SERIES B RIGHT
WARRANT CERTIFICATE
Delivery other than in the
manner or to the addresses listed below will not constitute valid delivery.
If
delivering by hand:
Equiniti Trust Company, LLC
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
If
delivering by mail or overnight courier:
Equiniti Trust Company, LLC
Operations Center
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
PLEASE PRINT ALL INFORMATION
CLEARLY AND LEGIBLY.
FORM 1-EXERCISE OF SERIES
B RIGHT WARRANT
You have been allocated the
number of Series B Right Warrants shown on this Transferable Series B Right Warrant Certificate. To exercise your Series B Right Warrants,
please complete the following and sign under Form 4 below.
(a) EXERCISE OF SERIES B RIGHT
WARRANT:
| I
exercise _____________ |
Series B Right Warrants x
$_______ |
= |
$______________ |
| (no. of right
warrants) |
(exercise
price) |
|
|
(B) Total Amount of Payment
Enclosed = $__________________
METHOD OF PAYMENT (CHECK ONE)
| ¨ | Check
or bank draft payable to “Equiniti Trust Company, LLC as Subscription Agent.” |
| | |
| ¨ | Wire transfer of immediately available funds directly to the account
maintained by Equiniti Trust Company, LLC, as Subscription Agent, for purposes of accepting subscriptions in this Rights Offering at ______________
Bank, ABA #___________ or Swift Code: _________, Account # ____________ Equiniti Trust Company, LLC FBO _______ Corporation, with reference
to the rights holder's name. |
FORM 2-TRANSFER TO DESIGNATED
TRANSFEREE
To transfer your Transferable
Series B Right Warrant Certificate to another person, complete this Form 2 and have your signature guaranteed under Form 5.
For value received ______________
of the Series B Right Warrants represented by this Transferable Series B Right Warrant Certificate are assigned to:
| Social Security # |
|
| |
| Signature(s): |
|
IMPORTANT: The signature(s)
must correspond with the name(s) as printed on the reverse of this Transferable Series B Right Warrant Certificate in every particular,
without alteration or enlargement, or any other change whatsoever.
FORM 3-DELIVERY TO DIFFERENT ADDRESS
If you wish for the shares of the
Company’s Common Stock underlying your Series B Right Warrants, a certificate representing unexercised Series B Right Warrants
or the proceeds of any sale of Series B Right Warrants to be delivered to an address different from that shown on the face of this Transferable
Series B Right Warrant Certificate, please enter the alternate address below, sign under Form 4 and have your signature guaranteed under
Form 5.
FORM 4-SIGNATURE
TO SUBSCRIBE: I acknowledge
that I have received the Prospectus for this Rights Offering and I hereby irrevocably exercise the number of Series B Right Warrants
indicated above on the terms and conditions specified in the Prospectus. By signing below I confirm that (1) after giving effect to the
exercise of my Series B Right Warrants, I will not beneficially own, as determined in accordance with Rule 13d-3 under the Securities
Exchange Act of 1934, as amended, more than 14.99% of the Company’s outstanding shares of Common Stock (calculated immediately
upon the closing of the rights offering) and (2), if I already beneficially own, as determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, in excess of 14.99% of the Company’s outstanding shares of Common Stock I will not,
via the exercise of the Series B Right Warrants, increase my proportionate interest in the Company’s Common Stock (with respect
to (1) or (2), any such excess shares, the “Excess Shares”). With respect to any such Excess Shares, I hereby (1) irrevocably
appoint and constitute the Company, each of its authorized officers and their designees, and each of them, with full power of substitution,
as my proxy and attorney in fact with full authority to vote and act by written consent with respect to any such Excess Shares on any
matter submitted to shareholders for a vote or action by written consent, in the discretion of such proxy, to the same extent I would
have the power to vote or act by written consent and (2) grant the Company a right for 90 days from the closing of the rights offering
to repurchase such Excess Shares at the lesser of the exercise price and the closing price of the Company’s Common Stock on The
Nasdaq Stock Market LLC the trading day immediately prior to the date on which notice is sent to the holder of the Company’s intent
to exercise such right, which notice must be sent prior to the expiration of such 90 day period. I agree to cooperate with the Company
and provide to the Company any and all information requested by the Company in connection with the exercise of the rights granted in
the previous sentence.
IMPORTANT: The signature(s)
must correspond with the name(s) as printed on the reverse of this Transferable Series B Right Warrant Certificate in every particular,
without alteration or enlargement, or any other change whatsoever.
FORM 5-SIGNATURE GUARANTEE
This form must be completed
if you have completed any portion of Forms 2 or 3.
| Signature Guaranteed: |
|
| |
(Name of Bank or Firm) |
| By: |
|
| |
(Signature of Officer) |
IMPORTANT: The signature(s)
should be guaranteed by an eligible guarantor institution (bank, stock broker, savings & loan association or credit union) with membership
in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.
FOR INSTRUCTIONS ON THE USE
OF THIS TRANSFERABLE SERIES B RIGHT WARRANT CERTIFICATE, CONSULT D.F. KING & CO., INC., THE INFORMATION AGENT, AT (800)
549-6864 FOR BANKS AND BROKERS OR CALL TOLL-FREE AT (212) 269-5550.
Exhibit 5.1
December 9, 2024
|
CytoSorbents Corporation
305 College Road East
Princeton, NJ 08540 |
Ladies and Gentlemen:
We have acted as counsel to CytoSorbents Corporation, a Delaware corporation
(the “Company”), in connection with the distribution and offer to holders of record of the Company’s common stock,
par value $0.001 per share (the “Common Stock”) and certain eligible warrantholders, non-transferable subscription right warrants
(the “Subscription Rights”) to purchase an aggregate of up to 6,250,000 units (the “Units”), each whole Unit consisting
of one share of Common Stock, one Series A right warrant to purchase one share of Common Stock (the “Series A Right Warrant”),
and one Series B right warrant to purchase one share of Common Stock (the “Series B Right Warrant” and, together with
the Series A Right Warrant, the “Right Warrants”), pursuant to the Subscription Agent Agreement (the “Subscription
Agent Agreement”), dated as of December 9, 2024, by and between the Company and Equiniti Trust Company, LLC, as subscription agent
(the “Agent”) and the Dealer-Manager Agreement (the “Dealer-Manager Agreement”), dated as of December 9, 2024,
by and between the Company and Moody Capital Solutions, Inc. (the “Dealer Manager”).
In connection with this opinion
letter, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the (i) Registration Statement
on Form S-3 (File No. 333-281062) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission
(the “Commission”), which was declared effective on September 30, 2024, the Prospectus Supplement, dated December 9, 2024
(the “Prospectus Supplement”) and the accompanying base prospectus (the “Base Prospectus”, and as supplemented
by the Prospectus Supplement, the “Prospectus”), (ii) Second Amended and Restated Certificate of Incorporation of the
Company, (iii) the Amended and Restated Bylaws of the Company, (iv) the Subscription Agent Agreement, and (v) the Dealer-Manager
Agreement and such other documents, records and other instruments as we have deemed appropriate for purposes of the opinion set forth
herein. As to questions of fact material to the opinions expressed herein, we have relied upon representations and certifications of officers
of the Company and appropriate public officials without independent verification of such matters except as otherwise described herein.
In our examination of the
foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents
and the legal competence of all signatories to such documents.
Based on the foregoing and
subject to the qualifications set forth herein, we are of the opinion that:
| 1. | the Subscription Rights have been duly authorized and, when issued
in the manner contemplated by the Prospectus will be valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors’ rights and to general equity principles; |
| |
Morgan, Lewis &
Bockius llp |
|
|
| |
|
|
|
| |
101 Park Avenue
New York, NY 10178-0060 |
 +1.212.309.6000 |
|
| |
United States |
 +1.212.309.6001 |
|
CytoSorbents Corporation
December 9, 2024
Page 2 of
| 2. | the Common Stock comprising the Units, when issued and delivered by the Company upon exercise of the Subscription
Rights in accordance with the terms thereof, will be validly issued, fully paid and non-assessable; |
| 3. | the Right Warrants have been duly authorized and, when issued and delivered by the Company upon exercise
of the Subscription Rights in accordance with the terms thereof, will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and |
| 4. | the Common Stock underlying the Right Warrants, when issued and delivered upon exercise of the Right Warrants
in accordance with the terms thereof, will be validly issued, fully paid and non-assessable. |
We assume for purposes of
this opinion that (i) the Agent is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization,
(ii) the Agent is duly qualified to engage in the activities contemplated by the Subscription Agreement, (iii) the Agent is
in compliance, generally and with respect to acting as an Agent under the Subscription Agreement, with all applicable laws and regulations,
(iv) the Dealer Manager has the requisite organizational and legal power and authority to perform its obligations under the Dealer-Manager
Agreement and (v) that the Dealer-Manager Agreement will be a valid, binding and enforceable obligation of the Dealer Manager.
This opinion is limited solely
to the Delaware General Corporation Law without regard to choice of law, to the extent that the same may apply to or govern the transactions
contemplated by the Registration Statement. We express no opinion as to the effect of events occurring, circumstances arising, or changes
of law becoming effective or occurring, after the date hereof on the matters addressed in this opinion.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Legal Matters” in
the document that forms a part of such Registration Statement. In giving such consent, we do not thereby admit that we are acting within
the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission
thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ MORGAN, LEWIS & BOCKIUS LLP |
Exhibit 99.1
THE TERMS AND CONDITIONS OF THE OFFERING ARE SET
FORTH IN THE COMPANY’S PROSPECTUS DATED ______, 202__ (THE “PROSPECTUS”) AND ARE INCORPORATED HEREIN BY REFERENCE.
COPIES OF THE PROSPECTUS ARE AVAILABLE UPON REQUEST FROM D.F. KING & CO., INC., THE INFORMATION AGENT, BY CALLING (800)
549-6864 (TOLL-FREE) OR (212) 269-5550 (BROKER-DEALERS AND NOMINEES) OR BY EMAIL AT CTSO@DFKING.COM.
FORM OF INSTRUCTIONS AS TO USE OF CYTOSORBENTS
CORPORATION
NON-TRANSFERABLE SUBSCRIPTION RIGHT WARRANT
CERTIFICATES
PLEASE CONSULT THE INFORMATION AGENT, SUBSCRIPTION
AGENT, YOUR BANK OR BROKER FOR ANY QUESTIONS
The following instructions relate to the rights offering being conducted
by CYTOSORBENTS CORPORATION, a Delaware corporation, to holders of our common stock, par value $0.001 per share (“Common
Stock”) and certain eligible warrantholders, as described in the prospectus dated ________, 2024. We are distributing, at no charge,
non-transferable subscription right warrants (the “Subscription Rights”) entitling holders of our Common Stock and certain
eligible warrantholders as of the record date of 5:00 p.m., Eastern Time, on December 16, 2024 (the “Record Date”), to
purchase units at a subscription price of $1.00 per Unit (“Unit Subscription Price”). Each unit (a “Unit”) will
consist of one share of Common Stock, one Series A right warrant to purchase one share of Common Stock (“Series A Right
Warrants”), and one Series B right warrant to purchase one share of Common Stock (“Series B Right Warrants”
and, together with the Series A Right Warrants, the “Right Warrants”). We refer to this as your basic right to purchase
one Unit. If you exercise your basic right in full, you will also have the right, or oversubscription privilege, to purchase additional
Units for which other rights holders do not subscribe, subject to certain pro rata allocations and ownership limitations. We refer to
the basic rights and oversubscription privilege together as Subscription Rights. The offering of the Subscription Rights and the Units
is referred to as the “offering.”
The Right Warrants are exercisable commencing
on their date of issuance at an exercise price equal to (i) in the case of the Series A Right Warrants, 90% of the 5-day
volume weighted average price of our Common Stock over the last 5-trading days prior to the expiration date of the Series A
Right Warrants, rounded down to the nearest whole cent but (x) not lower than $1.00 and (y) not higher than $2.00, which
is 45 days following the closing date of the subscription offering, (ii) in the case of the Series B Right Warrants, 90%
of the 5-day volume weighted average price of our Common Stock over the last 5-trading days prior to the expiration date of the
Series B Right Warrants, rounded down to the nearest whole cent but (x) not lower than $2.00 and (y) not higher than
$4.00, which is 90 days following the closing date of the subscription offering.
The Subscription Rights will be evidenced by
non-transferable subscription right warrant certificates (the “Non-Transferable Subscription Right Warrant Certificate”). The
number of basic rights to which you are entitled is printed on the face of your Non-Transferable Subscription Right Warrant
Certificate.
Oversubscription Privilege
If a holder purchases all of the Units available to it pursuant to
its basic rights, it may also exercise an oversubscription privilege to purchase additional Units to the extent other rights holders do
not exercise their basic rights in full. Oversubscription privilege will be allocated pro rata among rights holders who oversubscribe
in proportion to the total number of oversubscription Units for which the rights holders have subscribed. If you exercise fewer than all
of your basic rights, however, you will not be entitled to purchase any additional Units pursuant to the oversubscription privilege. There
will be no oversubscription privilege for the Right Warrants.
If you wish to exercise your oversubscription
privilege, you should deliver a completed Non-Transferable Subscription Right Warrant Certificate indicating the number of
additional Units that you would like to purchase as well as the number of shares of Common Stock that you beneficially own without
giving effect to any Units to be purchased in this rights offering and the required payment to the subscription agent by
January 10, 2025, the expiration date of the subscription offering. When you send in your Non-Transferable Subscription Right
Warrant Certificate, you must also send the Unit Subscription Price for the number of additional Units that you have requested to
purchase.
If the number of Units remaining after the exercise of all Subscription
Rights is not sufficient to satisfy all requests for Units pursuant to oversubscription privilege, we will allocate the unsubscribed Units
pro rata among rights holders who oversubscribed in proportion to the total number of oversubscription Units for which the rights holders
have subscribed. The subscription agent will promptly return any excess payments in the form in which made. To the extent your aggregate
subscription payment for the actual number of unsubscribed Units available to you pursuant to the oversubscription privilege is less than
the amount actually paid in connection with the exercise of the oversubscription privilege, you will be allocated only the number of unsubscribed
Units available to you, and any excess subscription payment will be promptly returned to you, without interest or penalty, after the expiration
of this offering.
As soon as practicable after the expiration of
the subscription offering, the subscription agent will determine the Units that you may purchase pursuant to the oversubscription privilege.
If you request and pay for more Units than are allocated to you, we will refund the overpayment in the form in which made. In connection
with the exercise of the oversubscription privilege, banks, brokers and other nominee holders of the basic rights who act on behalf of
beneficial owners will be required to certify to us and to the subscription agent as to the aggregate number of basic rights exercised,
and the number of Units requested through the oversubscription privilege, by each beneficial owner on whose behalf the nominee holder
is acting.
Subscription Rights may only be exercised in aggregate
for whole numbers of Units. Only whole numbers of shares of Common Stock and Right Warrants exercisable for whole numbers of shares of
Common Stock will be issuable to you in this offering; any right to a fractional share to which you would otherwise be entitled will be
terminated, without consideration to you. You are not required to exercise any or all of your basic rights. If you do not exercise your
Subscription Rights, you will lose any value represented by your Subscription Rights, and if you do not exercise your Subscription Rights
in full, your percentage ownership interest and related rights in our company will be diluted. Your percentage ownership of our voting
stock may also decrease if you do not exercise your Subscription Rights in full. Please see the discussion of dilution relating to the
Subscription Rights in the Questions and Answers Relating to This Offering section of the prospectus entitled “Am I required
to exercise the Subscription Rights that I receive in this offering or Right Warrants comprising the Units?”
Expiration Time – Subscription Rights
THE BASIC RIGHTS WILL EXPIRE AND WILL HAVE NO VALUE AT 5:00 P.M., EASTERN
TIME, JANUARY 10, 2025, SUBJECT TO EXTENSION OR EARLIER TERMINATION (THE “SUBSCRIPTION RIGHTS EXPIRATION DATE”). YOUR NON-TRANSFERABLE
SUBSCRIPTION RIGHT WARRANT CERTIFICATE AND SUBSCRIPTION PAYMENT FOR EACH SUBSCRIPTION RIGHT THAT IS EXERCISED PURSUANT TO THE SUBSCRIPTION
RIGHTS MUST BE RECEIVED BY THE SUBSCRIPTION AGENT ON OR BEFORE 5:00 P.M., EASTERN TIME, ON THE SUBSCRIPTION RIGHTS EXPIRATION DATE.
ONCE YOU HAVE EXERCISED YOUR SUBSCRIPTION RIGHT, SUCH EXERCISE MAY NOT BE REVOKED OR CHANGED, EVEN IF YOU LATER LEARN INFORMATION
THAT YOU CONSIDER TO BE UNFAVORABLE TO THE EXERCISE OF YOUR SUBSCRIPTION RIGHTS. SUBSCRIPTION RIGHTS NOT EXERCISED PRIOR TO 5:00 P.M.,
EASTERN TIME, ON THE SUBSCRIPTION RIGHTS EXPIRATION DATE WILL EXPIRE WITHOUT VALUE.
If you do not exercise your Subscription
Rights prior to that time, your Subscription Rights will expire and will no longer be exercisable. We will not be required to sell
Units to you if the subscription agent receives your Non-Transferable Subscription Right Warrant Certificate(s) or your
subscription payment after 5:00 p.m., Eastern time, on the Subscription Rights Expiration Date regardless of when the
Non-Transferable Subscription Right Warrant Certificate(s) and subscription payment were sent. If you send your
Non-Transferable Subscription Right Warrant Certificate(s) and payment of the Subscription Unit Price by mail, we recommend
that you send them by registered mail, properly insured, with return receipt requested, and that a sufficient number of days be
allowed to ensure delivery to the subscription agent and clearance of payment prior to the expiration of the subscription period.
See “The Rights Offering—Exercise of Subscription Rights” in the Prospectus.
The maximum number of our Units available for issuance in this offering
is 6,250,000 Units. If more than 6,250,000 Subscription Rights are exercised, we will allocate Units to subscribers on a pro-rata basis
based on the total number of Subscription Rights exercised. In addition, the maximum number of shares of our Common Stock available for
issuance in this offering is 12,500,000 shares, including the shares of Common Stock comprising the Units and pursuant to the exercise
of the Right Warrants comprising the units. If at any time the issuance of shares of Common Stock pursuant to the exercise of Right Warrants
comprising the units would exceed such share limitation, any issued and outstanding Right Warrants that remain unexercised will immediately
expire worthless.
If you have any questions concerning the offering,
please contact the Information Agent, D.F. King & Co., Inc. by telephone at (800) 549-6864 (toll-free) or (212) 269-5550
(broker-dealers and nominees) or by email at CTSO@dfking.com.
1. Method of Subscription—Exercise of
Subscription Rights
To exercise your Subscription Rights, please: (1) complete
Form 1 on your Non-Transferable Subscription Right Warrant Certificate, attached to these instructions; (2) sign Form 4
of your Non-Transferable Subscription Right Warrant Certificate; and (3) mail the properly completed and executed Non-Transferable
Subscription Right Warrant Certificate evidencing the basic rights and, if applicable, oversubscription privilege subscribed, together
with payment in full of the Subscription Unit Price for each Unit subscribed for pursuant to the basic rights and, if applicable, oversubscription
privilege, to the subscription agent, on or prior to the expiration of the subscription offering.
Additionally, if the share of Common Stock and Right Warrants issued
pursuant to the Units to be sold pursuant to the Subscription Rights are to be issued in a name other than that of the registered holder,
or sent to an address other than that shown on the front of the Non-Transferable Subscription Right Warrant Certificate, please complete
Form 2 of the Non-Transferable Subscription Right Warrant Certificate sign under Form 4 and have your signature guaranteed under
Form 5 prior to mailing the Non-Transferable Subscription Right Warrant Certificate to the subscription agent, prior to the Subscription
Rights Expiration Date. Payment of the Subscription Unit Price will be held in escrow by the subscription agent, on our behalf, in a segregated
account.
(a) Method
of Execution
(i) Execution
by Registered Holder. Your signature on the Non-Transferable Subscription Right Warrant Certificate must correspond
with the name of the registered holder exactly as it appears on the face of the Non-Transferable Subscription Right Warrant
Certificate without any alteration or change whatsoever. Persons who sign the Non-Transferable Subscription Right Warrant Certificate
in a representative or other fiduciary capacity must indicate their capacity when signing and, unless waived by the
subscription agent in its sole and absolute discretion, must present to the subscription agent satisfactory evidence of their
authority to so act.
(ii) Execution
by Person Other than Registered Holder. If the Non-Transferable Subscription Right Warrant Certificate is
executed by a person other than the holder named on the face of the Non-Transferable Subscription Right Warrant Certificate, proper
evidence of authority of the person executing the Non-Transferable Subscription Right Warrant Certificate must accompany the same
unless, for good cause, the subscription agent dispenses with proof of authority.
(iii) Signature Guarantees. If you
completed any part of Form 2 or Form 3 of the Non-Transferable Subscription Right Warrant Certificate to provide that the Common
Stock and Right Warrants issued pursuant to the Units sold pursuant to your exercise of Subscription Rights to be (x) issued
in a name other than that of the registered holder, or (y) sent to an address other than that shown on the front of the Non-Transferable
Subscription Right Warrant Certificate, your signature in Form 4 must be guaranteed in Form 5 by an “Eligible Guarantor
Institution,” as such term is defined in Rule 17Ad-15 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), such as a member firm of a registered national securities exchange or a member of the Financial Industry Regulatory Authority, Inc.,
or a commercial bank or trust company having an office or correspondent in the United States, or by a member of a Stock Transfer
Association approved medallion program such as STAMP, SEMP or MSP, subject to standards and procedures adopted by the Subscription
Agent.
| (b) |
Method of Payment and Delivery |
Registered holders may send to the
subscription agent (a) payment of the full Unit Subscription Price for Units acquired in the basic right and any additional
Units subscribed for pursuant to the oversubscription privilege and (b) a properly completed and duly executed Non-Transferable
Subscription Right Warrant Certificate, which must be received by the subscription agent at the subscription agent’s offices
set forth below, at or prior to 5:00 p.m., Eastern time, on the Subscription Rights Expiration Date. A properly completed and duly
executed Non-Transferable Subscription Right Warrant Certificate and full payment for the Units must be received by the subscription agent
at or prior to 5:00 p.m., Eastern time, on January 10, 2025 unless the offering is extended by us.
All payments by a registered holder must be in
U.S. dollars by certified check payable to the order of “Equiniti Trust Company, LLC, as the Subscription Agent” Payment also may be made by wire transfer to the account maintained by an escrow agent retained by Equiniti Trust Company,
LLC, as Subscription Agent, for purposes of accepting subscriptions in this offering with reference to the registered holder’s name.
The subscription agent will deposit all funds received by it prior to the final payment date in escrow in a segregated account maintained
by an escrow agent retained by the Subscription Agent on our behalf, pending pro-ration and distribution of the Units.
|
Beneficiary Account Name: Equiniti Trust Company, LLC |
|
|
Account Number: |
|
|
__________________ |
|
|
ABA/Routing number: |
|
|
__________________ |
|
|
Bank: |
|
|
__________________ |
|
|
|
|
|
__________________ |
|
|
|
|
|
__________________ |
|
|
For Further Credit: |
|
|
CytoSorbents Corporation |
|
|
Account Number: |
|
|
__________________ |
|
| |
|
|
|
|
|
Non-Transferable Subscription Right Warrant
Certificate and payments of Unit Subscription Price must be delivered to the subscription agent by hand, or overnight courier or by
first class mail to the below:
|
If delivering by hand:
Equiniti Trust Company, LLC
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
If delivering by mail or overnight courier:
Equiniti Trust Company, LLC
Operations Center
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
Delivery to an address or by a method other
than those above will not constitute valid delivery.
2. Issuance of Common Stock and Right Warrants
The following deliveries and payments will be
made and/or issued to the address shown on the face of your Non-Transferable Subscription Right Warrant Certificate, unless you provide
instructions to the contrary in your Non-Transferable Subscription Right Warrant Certificate.
| (a) |
Basic Rights. As soon as practicable following the Subscription Rights Expiration Date and the valid exercise of the basic rights, we will issue to each holder exercising their basic rights shares of Common Stock and Right Warrants in book-entry, or uncertificated form representing shares of Common Stock and Right Warrants, included in the Units purchased pursuant to the basic rights. |
| |
|
| (b) |
Oversubscription Privilege. As soon as
practicable following the Subscription Rights Expiration Date and after all prorations and adjustments contemplated by the terms
of the rights offering have been effected, we will issue to each holder of Subscription Rights that validly exercises the oversubscription
privilege shares of Common Stock and Right Warrants in book-entry, or uncertificated, form representing the number of shares of Common
Stock and Right Warrants included in the Units, if any, allocated to such holder of Subscription Rights pursuant to the oversubscription
privilege. |
| (c) |
Excess Cash Payments. As soon as practicable following the Subscription Rights Expiration Date and after all prorations and adjustments contemplated by the terms of the rights offering have been effected, any excess subscription payments received in payment of the initial price will be mailed by the subscription agent to each holder of Subscription Rights, without interest or penalty. |
3. No Sale or Transfer of Subscription Rights
The Subscription Rights granted to you are non-transferable
and, therefore, you may not sell, transfer or assign your Subscription Rights to anyone.
4. Special Provisions Relating to the Delivery
of Subscription Rights through the Depository Trust Company
Banks, trust companies, securities dealers and
brokers (each, a “Nominee”) that hold shares of our Common Stock on the Record Date as nominee for more than one beneficial
owner may, upon proper showing to the subscription agent, exercise such beneficial owner’s Subscription Rights through DTC on the
same basis as if the beneficial owners were stockholders on the Record Date. Such Nominee may exercise the basic rights on behalf of the
exercising beneficial owner through DTC’s PSOP Function on the “agents subscription over PTS” procedure by (1) providing
a certification as to the aggregate number of basic rights exercised by the beneficial owner on whose behalf such Nominee is acting, and
(2) instruct DTC to charge the Nominee’s applicable DTC account for the subscription payment for the new Units to facilitate
the delivery of the full subscription payment to the subscription agent. DTC must receive the subscription instructions and payment for
the new Units no later than the Subscription Rights Expiration Date.
5. Form W-9
Each basic right holder who elects to exercise
basic rights should provide the subscription agent with a correct Taxpayer Identification Number (TIN) on IRS Form W-9. See “Material
U.S. Federal Income Tax Consequences — Information Reporting and Backup Withholding” in the prospectus. Failure to provide
the information on the form may subject such holder to a $50 penalty for each such failure and to 24% federal income tax withholding with
respect to dividends (including deemed dividends) that may be paid by the company on shares of its Common Stock and preferred stock. Foreign
Persons are generally required to provide an appropriate IRS Form W-8 rather than IRS Form W-9 and may be subject to withholding
on dividends (including deemed dividends) at a rate of up to 30%.
Exhibit 99.2
THE TERMS AND CONDITIONS OF THE OFFERING ARE SET FORTH IN THE COMPANY’S
PROSPECTUS DATED _______, 202__ (THE “PROSPECTUS”) AND ARE INCORPORATED HEREIN BY REFERENCE. COPIES OF THE PROSPECTUS ARE
AVAILABLE UPON REQUEST FROM D.F. KING & CO., INC., THE INFORMATION AGENT, BY CALLING (800) 549-6864 (TOLL-FREE) OR (212)
269-5550 (BROKER-DEALERS AND NOMINEES) OR BY EMAIL AT CTSO@DFKING.COM.
FORM OF INSTRUCTIONS AS TO USE OF CYTOSORBENTS
CORPORATION
TRANSFERABLE SERIES A RIGHT WARRANT CERTIFICATE
TRANSFERABLE SERIES B RIGHT WARRANT CERTIFICATE
PLEASE CONSULT THE SUBSCRIPTION AGENT, INFORMATION
AGENT, YOUR BANK OR BROKER FOR ANY QUESTIONS
The following instructions relate to the rights offering being conducted
by CYTOSORBENTS CORPORATION, a Delaware corporation, to holders of our common stock, par value $0.001 per share, and certain eligible
warrantholders as described in the Prospectus. We are distributing, at no charge, non-transferable subscription rights (the “Subscription
Rights”) entitling holders of our Common Stock and certain eligible warrantholders as of the record date of 5:00 p.m., Eastern Time,
on December 16, 2024 (the “Record Date”), to purchase units at a subscription price of $1.00 per Unit (“Unit Subscription
Price”). Each unit (a “Unit”) will consist of one share of Common Stock, one Series A right warrant to purchase
one share of Common Stock (“Series A Right Warrants”), and one Series B right warrant to purchase one share of Common
Stock (“Series B Right Warrants” and, together with the Series A Right Warrants, the “Right Warrants”).
We refer to this as your basic right to purchase one Unit. If you exercise your basic right in full, you will also have the right, or
oversubscription privilege, to purchase additional Units for which other rights holders do not subscribe, subject to certain pro rata
allocations and ownership limitations. We refer to the basic rights and oversubscription privilege together as Subscription Rights. The
offering of the Subscription Rights and the Units is referred to as the “offering.”
The Right Warrants are exercisable commencing
on their date of issuance at an exercise price equal to (i) in the case of the Series A Right Warrants, 90% of the 5-day
volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series A Right
Warrants, rounded down to the nearest whole cent but (x) not lower than $1.00 and (y) not higher than $2.00, which is 45
days following the closing date of the subscription offering, (ii) in the case of the Series B Right Warrants, 90% of the
5-day volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series B
Right Warrants, rounded down to the nearest whole cent but (x) not lower than $2.00 and (y) not higher than $4.00, which
is 90 days following the closing date of the subscription offering.
Expiration Time – Series A Right
Warrant
THE SERIES A RIGHT WARRANT WILL EXPIRE AND WILL
HAVE NO VALUE AT 5:00 P.M., EASTERN TIME, ON ______________, 2025 (“SERIES A RIGHT WARRANT EXPIRATION DATE”) SUBJECT TO EXTENSION
OR EARLIER TERMINATION. YOUR CERTIFICATE FOR YOUR SERIES A RIGHT WARRANT (THE “TRANSFERABLE SERIES A RIGHT WARRANT CERTIFICATE”)
AND PAYMENT OF THE INITIAL EXERCISE PRICE OF THE SERIES A RIGHT WARRANT MUST BE RECEIVED BY THE SUBSCRIPTION AGENT ON OR BEFORE 5:00 P.M.,
EASTERN TIME, ON THE SERIES A RIGHT WARRANT EXPIRATION DATE. ONCE YOU HAVE EXERCISED YOUR SERIES A RIGHT WARRANT, SUCH EXERCISE MAY NOT
BE REVOKED OR CHANGED, EVEN IF YOU LATER LEARN INFORMATION THAT YOU CONSIDER TO BE UNFAVORABLE TO THE EXERCISE OF YOUR SERIES A RIGHT
WARRANT. SERIES A RIGHT WARRANT NOT EXERCISED PRIOR TO 5:00 P.M., EASTERN TIME, ON THE SERIES A EXPIRATION DATE WILL EXPIRE WITHOUT VALUE.
If you do not exercise your Series A Right Warrant prior to the
Series A Expiration Date, your Series A Right Warrant will expire and will no longer be exercisable. We will not be required
to sell shares of common stock to you if the subscription agent receives your Transferable Series A Right Warrant Certificate or
your payment after 5:00 p.m., Eastern time, on the Series A Right Warrant Expiration Date regardless of when the Transferable Series A
Right Warrant Certificate and payment were sent. If you send your Transferable Series A Right Warrant Certificate and payment by
mail, we recommend that you send them by registered mail, properly insured, with return receipt requested, and that a sufficient number
of days be allowed to ensure delivery to the subscription agent and clearance of payment prior to the Series A Right Warrant Expiration
Date. See “The Rights Offering—Exercise of Subscription Rights” in the Prospectus.
Expiration Time – Series B Right
Warrant
THE SERIES B RIGHT WARRANT WILL EXPIRE AND WILL
HAVE NO VALUE AT 5:00 P.M., EASTERN TIME, ON ______________, 2025 (“SERIES B RIGHT WARRANT EXPIRATION DATE”) SUBJECT
TO EXTENSION OR EARLIER TERMINATION. YOUR CERTIFICATE FOR YOUR SERIES B RIGHT WARRANT (THE “TRANSFERABLE SERIES B RIGHT WARRANT
CERTIFICATE”) AND PAYMENT OF THE INITIAL EXERCISE PRICE OF THE SERIES B RIGHT WARRANT MUST BE RECEIVED BY THE SUBSCRIPTION AGENT
ON OR BEFORE 5:00 P.M., EASTERN TIME, ON THE SERIES B RIGHT EXPIRATION DATE. ONCE YOU HAVE EXERCISED YOUR SERIES B RIGHT WARRANT,
SUCH EXERCISE MAY NOT BE REVOKED OR CHANGED, EVEN IF YOU LATER LEARN INFORMATION THAT YOU CONSIDER TO BE UNFAVORABLE TO THE EXERCISE
OF YOUR SERIES B RIGHT WARRANT. SERIES B RIGHT WARRANT NOT EXERCISED PRIOR TO 5:00 P.M., EASTERN TIME, ON THE SERIES B RIGHT WARRANT EXPIRATION
DATE WILL EXPIRE WITHOUT VALUE.
If you do not exercise your Series B Right Warrant prior to the
Series B Right Warrant Expiration Date, your Series B Right Warrant will expire and will no longer be exercisable. We will not
be required to sell shares of common stock to you if the subscription agent receives your Transferable Series B Right Warrant Certificate
or your payment after 5:00 p.m., Eastern time, on the Series B Right Warrant Expiration Date, regardless of when the Transferable
Series B Right Warrant Certificate and payment were sent. If you send your Transferable Series B Right Warrant Certificate and
payment by mail, we recommend that you send them by registered mail, properly insured, with return receipt requested, and that a sufficient
number of days be allowed to ensure delivery to the subscription agent and clearance of payment prior to Series B Right Warrant Expiration
Date. See “The Right Offering—Exercise of Subscription Rights” in the prospectus.
If, at the expiration date of each of the respective
Right Warrants, the exercise price as determined is lower than the initial exercise price, any excess amount paid by a holder will be
promptly returned to the holder, without interest or penalty.
The maximum number of our Units available for
issuance in this offering is 6,250,000 Units. If more than 6,250,000 Subscription Rights are exercised, we will allocate Units to subscribers
on a pro-rata basis based on the total number of Subscription Rights exercised. In addition, the maximum number of shares of our Common
Stock available for issuance in this offering is 12,500,000 shares, including the shares of Common Stock comprising the Units and pursuant
to the exercise of the Right Warrants comprising the units. If at any time the issuance of shares of Common Stock pursuant to the exercise
of Right Warrants comprising the units would exceed such share limitation, any issued and outstanding Right Warrants that remain unexercised
will immediately expire worthless.
If you have any questions concerning this offering,
please contact the Information Agent, D.F. King & Co., Inc. by telephone at (800) 549-6864 (toll-free) or (212) 269-5550
(broker-dealers and nominees) or by email at CTSO@dfking.com.
1. Method of Exercise—Exercise of Right
Warrants
For the Right Warrants that you wish to exercise, please: (1) complete
Form 1 of the applicable Transferable Right Warrant Certificate that you wish to exercise (see each of Transferable Right Warrant
Certificate attached to these instructions); (2) sign Form 4 of the applicable Transferable Right Warrant Certificate; and (3) mail
the properly completed and executed Transferable Right Warrant Certificate evidencing the exercise of the applicable Right Warrants, together
with the applicable payment for each Right Warrant exercised to the subscription agent, on or prior to the applicable expiration date.
If at the expiration date of each of the Right Warrants, the exercise price as determined above is lower than the initial price paid any
excess subscription amount paid by a holder will be promptly returned to the holder, without interest or penalty.
Additionally, if the shares of common stock issued
pursuant the exercise of the Right Warrants are to be issued in a name other than that of the registered holder, or sent to an address
other than that shown on the front of the Transferable Right Warrant Certificate, please complete Form 2 of the Transferable Right
Warrant Certificate being exercised and sign under Form 4 and have your signature guaranteed under Form 5 prior to mailing the applicable
Transferable Right Warrant Certificate to the subscription agent, prior to the applicable expiration date. Payment of the initial exercise
price will be held in escrow by an escrow agent retained by the subscription agent, on our behalf, in a segregated account.
(a) Method
of Execution
(i) Execution
by Registered Holder. Your signature on the applicable Transferable Right Warrant Certificate must
correspond with the name of the registered holder exactly as it appears on the face of the Transferable Right Warrant Certificate
without any alteration or change whatsoever. Persons who sign the Transferable Right Warrant Certificate in a representative or other
fiduciary capacity must indicate their capacity when signing and, unless waived by the subscription agent in its sole and absolute
discretion, must present to the subscription agent satisfactory evidence of their authority to so act.
(ii) Execution
by Person Other than Registered Holder. If the Transferable Right Warrant Certificate is executed by a person other than
the holder named on the face of the Transferable Right Warrant Certificate, proper evidence of authority of the person executing the
Transferable Series Rights Certificate must accompany the same unless, for good cause, the subscription agent dispenses with
proof of authority.
(iii) Signature Guarantees.
If you completed any part of Form 2 or Form 3 of the Non-Transferable Series Rights Certificate to provide that the common
stock issued pursuant to your exercise of the applicable Right Warrants to be (x) issued in a name other than that of the registered
holder, or (y) sent to an address other than that shown on the front of the Non-Transferable Series Rights Certificate, your
signature in Form 4 must be guaranteed in Form 5 by an “Eligible Guarantor Institution,” as such term is defined
in Rule 17Ad-15 of the Securities Exchange Act of 1934, such as a member firm of a registered national securities exchange or
a member of the Financial Industry Regulatory Authority, Inc., or a commercial bank or trust company having an office or correspondent
in the United States, or by a member of a Stock Transfer Association approved medallion program such as STAMP, SEMP or MSP, subject
to standards and procedures adopted by the subscription agent.
| (b) |
Method of Payment and Delivery |
Registered holders may send to the subscription agent (a) payment
of the full initial exercise price for the Right Warrants being exercised (e.g., $2.00 or $4.00 for each Series A Right Warrant and
Series B Right Warrant, respectively) (b) a properly completed and duly executed Transferable Right Warrant Certificate for
the applicable Right Warrants being exercised, which must be received by the subscription agent at the subscription agent’s offices
set forth herein, at or prior to 5:00 p.m., Eastern time, on the applicable expiration date. A properly completed and duly executed Transferable
Right Warrant Certificate for the Right Warrants being exercised and full payment of the initial exercise price must be received by the
subscription agent at or prior to 5:00 p.m., Eastern time, on the applicable expiration date unless the expiration date is extended by
us.
All payments by a registered holder must be in
U.S. dollars by certified check payable to the order of “Equiniti Trust Company, LLC, as the Subscription Agent” Payment also may be made by wire transfer to the account maintained by an escrow agent retained by Equiniti Trust Company,
LLC, as Subscription Agent, for purposes of accepting subscriptions in this offering, with reference to the registered holder’s
name. The subscription agent will deposit all funds received by it prior to the final payment date in escrow in a segregated account maintained
by an escrow agent retained by the subscription agent on our behalf, pending pro-ration and distribution of the shares of common stock.
If at the expiration date of each of the respective Right Warrants, the final exercise price is lower than the initial exercise price,
any excess amount paid by a registered holder, will be promptly returned to the registered holder, without interest or penalty.
| |
Beneficiary Account Name: Equiniti Trust Company, LLC |
|
| |
Account Number: |
________________________________ |
|
| |
ABA/Routing number: |
________________________________ |
|
| |
Bank: |
________________________________ |
|
| |
|
________________________________ |
|
| |
For Further Credit: |
CytoSorbents Corporation
| |
| |
Account Number: |
________________________________ |
|
Each
Transferable Right Warrant Certificate and payments of the applicable exercise price (e.g., $2.00 or $4.00 for each Series A
Right Warrant or Series B Right Warrant, respectively) must be delivered to the subscription agent by hand, or overnight
courier or by first class mail to the below:
|
If delivering by hand:
Equiniti Trust Company, LLC
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
If delivering by mail or overnight courier:
Equiniti Trust Company, LLC
Operations Center
Attn: Reorganization Department
55 Challenger Road, Suite 200
Ridgefield Park, NJ 07660 |
Delivery to an address or by a method other
than those above will not constitute valid delivery.
2. Issuance of Common Stock
The following deliveries and payments will be made and/or issued to
the address shown on the face of your Transferable Right Warrant Certificate, unless you provide instructions to the contrary in your
Transferable Right Warrant Certificate.
| (a) |
|
Right Warrants. As soon as practicable following the expiration of each of the Right Warrants and the valid exercise of the Right Warrants, we will issue to each holder exercising their Right Warrants one share of common stock for each Right Warrant exercised in book-entry, or uncertificated form representing the shares of common stock purchased pursuant to the Right Warrants. |
| |
|
|
| (b) |
|
Excess Cash Payments. As soon as practicable following the expiration date of each of the Right Warrants and after all prorations and adjustments contemplated by the terms of the offering have been effected, any excess payments received in payment of the initial price will be mailed by the subscription agent to each holder of the Right Warrants, without interest or penalty. |
3. Transfer of Right Warrants
The Right Warrants granted to you are transferable, in whole or in
part. If you wish to transfer Right Warrants, please: (1) complete Form 2 of the Non-Transferable Subscription Right Warrant Certificate;
(2) sign under Form 4 and have your signature guaranteed under Form 5 of the Non-Transferable Subscription Right Warrant Certificate;
and (3) mail the properly completed and executed Transferable Right Warrant Certificate evidencing the transfer of the applicable Right
Warrants, together with funds sufficient to pay any transfer taxes payable upon the making of such transfer to the subscription agent,
on or prior to the applicable expiration date.
4. Special Provisions Relating to the Delivery
of Right Warrants through the Depository Trust Company
Banks, trust companies, securities dealers and
brokers that hold shares of our common stock on the Record Date as nominee for more than one beneficial owner may, upon proper showing
to the subscription agent, exercise such beneficial owner’s Right Warrants through DTC on the same basis as if the beneficial owners
were stockholders on the Record Date. Such nominee may exercise the Right Warrants on behalf of the exercising beneficial owner through
DTC by: (1) providing a certification as to the aggregate number of Right Warrants exercised by the beneficial owner on whose behalf
such nominee is acting, and (2) instructing DTC to charge the nominee’s applicable DTC account for the initial price for the
new shares of Common Stock to facilitate the delivery of the full exercise payment to the subscription agent. DTC must receive the subscription
instructions and payment for the Right Warrants exercised no later than the applicable expiration date for each of the Right Warrants
exercised. In the event the transfer agent is not participating in DTC for the Right Warrants, such nominee may exercise the Right Warrants
on behalf of the exercising beneficial owner pursuant to instructions in Section 1 above, and including in such mailing a Transferable
Right Warrant Certificate, registered in the Company’s share register in the name of the beneficial owner or its designee, for the
number of shares of Common Stock to which the beneficial owner is entitled pursuant to such exercise.
5. Form W-9
Each Right Warrants holder who elects to exercise
their Right Warrants should provide the subscription agent with a correct Taxpayer Identification Number (TIN) on IRS Form W-9. See
“Material U.S. Federal Income Tax Consequences — Information Reporting and Backup Withholding” in the Prospectus. Failure
to provide the information on the form may subject such holder to a $50 penalty for each such failure and to 24% federal income tax withholding
with respect to dividends (including deemed dividends) that may be paid by the Company on shares of its common stock. Foreign Persons
are generally required to provide an appropriate IRS Form W-8 rather than IRS Form W-9 and may be subject to withholding on
dividends (including deemed dividends) at a rate of up to 30%.
Exhibit 99.3
FORM OF LETTER
TO STOCKHOLDERS AND CERTAIN ELIGIBLE WARRANTHOLDERS
WHO ARE RECORD HOLDERS
CYTOSORBENTS CORPORATION
6,250,000 Units
Offered Pursuant to Subscription Rights
Distributed to Stockholders
of CytoSorbents Corporation
______________, 2024
Dear Stockholders:
Enclosed
are materials relating to the rights offering being conducted by CytoSorbents Corporation, a Delaware corporation, including
the prospectus dated _________, 2024 (the “Prospectus”). Please carefully review the Prospectus, which describes how you
can participate in the rights offering. You will be receiving and will be able to exercise your non-transferable subscription right
warrants (the “Subscription Rights”) to purchase units (a “Unit”) of securities at a subscription price equal to
$______ (the “Unit Subscription Price”). The Subscription Rights will expire if not exercised prior to 5:00 p.m.,
Eastern time, on _______, 2025, unless we extend or terminate the subscription offering.
Each Unit consists of one share of common
stock, one Series A Right Warrant to purchase one share of common stock (“Series A Right Warrant”), one Series B
Right Warrant to purchase one share of common stock (“Series B Right Warrant” and, together with the Series A
Right Warrant, the “Right Warrants”). The Right Warrants are exercisable commencing on their date of issuance at an
exercise price equal to (i) in the case of the Series A Right Warrants, 90% of the 5-day volume weighted average price of
our Common Stock over the 5-trading days prior to the expiration date of the Series A Right Warrants, rounded down to the
nearest whole cent but (x) not lower than $1.00 and (y) not higher than $2.00, which is 45 days following the closing date
of the subscription offering, (ii) in the case of the Series B Right Warrants, 90% of the 5-day volume weighted average
price of our Common Stock over the 5-trading days prior to the expiration date of the Series B Right Warrants, rounded down to
the nearest whole cent but (x) not lower than $2.00 and (y) not higher than $4.00, which is 90 days following the closing
date of the subscription offering. Answers to some frequently asked questions about the offering can be found under the heading
“Questions and Answers Relating to This Offering” in the Prospectus. Any prospective purchaser of Units pursuant to the
exercise of the Subscription Rights or shares of our common stock pursuant to the exercise of the Right Warrants should read the
Prospectus, including without limitation the risk factors contained therein, prior to making any decision to invest in the
company.
As described in the Prospectus, you will receive
one Subscription Right for each share of our common stock beneficially owned by you as of the record date of 5:00 p.m., Eastern time, on _____, 2024 (the “Record Date”). Each Subscription Right
consists of a basic right, which entitles holders to purchase one Unit and an oversubscription privilege which will be exercisable only
if holder exercises his or her basic right in full and will entitle the holder to purchase additional Units for which other holders do
not subscribe.
For holders exercising their basic right, sufficient
Units may not be available to honor your full request. We will fulfill all basic rights first and should the Units underlying the number
of exercised basic rights exceed the 6,250,000 Units available, we will allocate the Units pro rata among those holders that subscribed
and exercised their basic right in proportion to the total number of basic rights exercised. As a result, if the subscription offering
is completed, you will receive whole Units to the full extent you have properly exercised your basic rights in whole or in part for such
whole Units, and Units are available.
The maximum number of our Units available for issuance
in this offering is 6,250,000 Units. If more than 6,250,000 Subscription Rights are exercised, we will allocate Units to subscribers on
a pro-rata basis based on the total number of Subscription Rights exercised. In addition, the maximum number of shares of our Common Stock
available for issuance in this offering is 12,500,000 shares, including the shares of Common Stock comprising the Units and pursuant to
the exercise of the Right Warrants comprising the units. If at any time the issuance of shares of Common Stock pursuant to the exercise
of Right Warrants comprising the units would exceed such share limitation, any issued and outstanding Right Warrants that remain unexercised
will immediately expire worthless.
As a result, if the subscription offering is completed, you will receive whole
Units to the full extent you have properly exercised your basic rights in whole or in part for such whole Units. Sufficient Units may
not be available to honor your request for additional Units pursuant to your oversubscription privilege. If exercises of the oversubscription
privileges exceed the number of Units available, we will allocate the available Units pro-rata among rights holders who oversubscribed
based on the number of oversubscription Units for which the holders have subscribed.
The maximum number of our Units available for issuance in this offering
is 6,250,000 Units. If more than 6,250,000 Subscription Rights are exercised, we will allocate Units to subscribers on a pro-rata basis
based on the total number of Subscription Rights exercised. In addition, the maximum number of shares of our Common Stock available for
issuance in this offering is 12,500,000 shares, including the shares of Common Stock comprising the Units and pursuant to the exercise
of the Right Warrants comprising the units. If at any time the issuance of shares of Common Stock pursuant to the exercise of Right Warrants
comprising the units would exceed such share limitation, any issued and outstanding Right Warrants that remain unexercised will immediately
expire worthless.
You will be required to submit payment in
full for all the Units you wish to buy in the subscription offering and later for all of the Right Warrants you wish to exercise in
the offering. If you wish to maximize the number of Units you may purchase pursuant to your oversubscription privilege, you will
need to deliver payment in an amount equal to the aggregate price for the maximum number of Units available to you, assuming that no
shareholder other than you has purchased any Units pursuant to the basic rights and oversubscription privilege. The company will
eliminate fractional Units resulting from the exercise of the oversubscription privilege by rounding down to the nearest whole
number, with the total subscription payment being adjusted accordingly. Any excess subscription payments received by the
subscription agent will be promptly returned, without interest or penalty, after the expiration of this offering.
The company can provide no assurances that you
will actually be entitled to purchase (i) the number of Units subscribed for pursuant to the exercise of your oversubscription privilege
in full at the expiration of the subscription offering or (ii) the number of shares of common stock you elect to purchase pursuant
to the exercise of your Right Warrants in full at the expiration of the Right Warrants. The company will not be able to satisfy your exercise
of the oversubscription privilege if all of our stockholders exercise their basic rights in full, and we will only honor an oversubscription
privilege to the extent sufficient Units are available following the exercise of basic right.
To the extent your aggregate subscription payment
for the actual number of unsubscribed Units available to you pursuant to the oversubscription privilege is less than the amount you actually
paid in connection with the exercise of the oversubscription privilege, you will be allocated only the number of unsubscribed Units available
to you, and any excess subscription payment will be promptly returned to you, without interest or penalty, after the expiration of this
offering.
You are not required to exercise any or all of
your Subscription Rights or Right Warrants. If you do not exercise your Subscription Rights or Right Warrants and the offering is completed,
the number of shares of our common stock you own will not change but your percentage ownership of our total outstanding voting stock may
decrease because shares may be purchased by other stockholders in the offering. Your percentage ownership of our voting stock may also
decrease if you do not exercise your Subscription Right or Right Warrants in full. Please see the discussion of risk factors related to
the rights offering, including dilution, under the heading “Risk Factors — “Your interest in our company may be diluted
as a result of the offering” in the Prospectus.
The Subscription Rights and the Right Warrants will be evidenced by
a Non-Transferable Subscription Right Warrant Certificate and Transferable Right Warrant Certificate and will cease to have any value
after the respective expiration dates of the Subscription Rights and the Right Warrants.
Enclosed are copies of the following documents:
| 2. | Non-Transferable Subscription Right Warrant Certificate; |
| 3. | Transferable Series A Right Warrant Certificate; |
| 4. | Transferable Series B Right Warrant Certificate; |
| 5. | Instruction as to Use of CytoSorbent Corporation Non-Transferable Subscription Right Warrant Certificate; |
| 6. | Instruction as to Use of CytoSorbent Corporation Transferable Right Warrant Certificate; and |
| 7. | A return envelope addressed to Equiniti Trust Company, LLC, the subscription agent. |
Your prompt action is requested. To exercise your
Subscription Rights and Right Warrants, as indicated in the Prospectus, you should deliver to the subscription agent the properly completed
and signed the following:
(i) Non-Transferable Subscription Right Warrant Certificate with payment of Unit Subscription Price for each Unit subscribed
(pursuant to the basic rights and the oversubscription privilege) for and
(ii) Transferable Right Warrant Certificate for the applicable Right Warrant exercised with payment of the applicable
exercise price (e.g., $2.00 or $4.00 for each Series A Right Warrants and Series B Right Warrants, respectively). The subscription
agent must receive the Non-Transferable Subscription Right Warrant Certificate with payment of the initial price for the Units and the Transferable
Right Warrant Certificate for the applicable Right Warrant exercised with payment of the applicable exercise price prior to their respective
expiration dates. If at the respective expiration date of the Subscription Rights or Right Warrant, the initial price paid is higher than
the final price, the excess amount paid by a holder will be promptly returned to the holder, without interest or penalty.
If you send your Non-Transferable Subscription Right Warrant Certificates
and Unit Subscription Price payment or the Transferable Right Warrant Certificates and initial exercise price payment by mail, we recommend
that you send them by registered mail, properly insured, with return receipt requested. We will not be required to sell Units or shares
of common stock to you if the subscription agent receives your Non-Transferable Subscription Right Warrant Certificate (or your subscription
payment) or Transferable Right Warrant Certificate (or your exercise price payment) after their respective expiration date, regardless
of when the Non-Transferable Subscription Right Warrant Certificate and subscription payment or Transferable Right Warrant Certificate
and exercise payment were sent. See the discussion under the heading “The Rights Offering—Exercise of Subscription Rights”
in the Prospectus.
Once you have exercised your Subscription Rights
or Right Warrants, such exercise may not be revoked, even if you later learn information that you consider to be unfavorable to the exercise
of your Subscription Rights or Right Warrants.
Additional copies of the enclosed materials may
be obtained from D.F. King & Co., Inc. by telephone at (800) 549-6864 (toll-free) or (212) 269-5550 (broker-dealers and
nominees) or by email at CTSO@dfking.com. Any questions or requests for assistance concerning the rights offering should be directed to
the Information Agent.
| |
Very truly yours, |
| |
|
| |
CytoSorbents Corporation |
| |
|
| |
|
| |
Title: |
Dr. Phillip P. Chan |
| |
Name: |
Chief Executive Officer |
Exhibit 99.4
FORM OF LETTER TO BROKERS AND OTHER NOMINEE
HOLDERS
CYTOSORBENTS CORPORATION
6,250,000 Units
Offered Pursuant to Subscription Rights
Distributed to Stockholders
of CytoSorbents Corporation
_________, 2024
To Securities Dealers, Commercial Banks, Trust Companies and Other
Nominees:
This letter is being distributed to securities
dealers, commercial banks, trust companies and other nominees in connection with the rights offering being conducted by CytoSorbents Corporation,
a Delaware corporation (the “Company”), of non-transferable subscription right warrants (the “Subscription Rights”)
distributed to holders of our common stock and certain eligible warrantholders at 5:00 p.m., Eastern time, on ________, 2024 (the “Record
Date”) to purchase units (a “Unit”) of securities at a subscription price equal to $____ (the “Unit Subscription
Price”). Each Unit consists of one share of common stock, one Series A Right Warrant to purchase one share of common stock (“Series A
Rights Warrant”), one Series B Right Warrant to purchase one share of common stock (“Series B Rights Warrant” and,
together with the Series A Rights Warrant, the “Right Warrants”). The Subscription Rights will expire if not exercised
prior to 5:00 p.m., Eastern time, on _________, 2024 unless we extend or terminate the subscription offering.
The Right Warrants are exercisable commencing
on their date of issuance at an exercise price equal to (i) in the case of the Series A Right Warrants, 90% of the 5-day
volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series A Right
Warrants, rounded down to the nearest whole cent but (x) not lower than $1.00 and (y) not higher than $2.00, which is 45
days following the closing date of the subscription offering, (ii) in the case of the Series B Right Warrants, 90% of the
5-day volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series B
Right Warrants, rounded down to the nearest whole cent but (x) not lower than $2.00 and (y) not higher than $4.00, which
is 90 days following the closing date of the subscription offering. The Subscription Rights, Units and Right Warrants are described
in the prospectus dated ________, 2024 (the “Prospectus”). Any prospective purchaser of Units pursuant to the exercise
of the Subscription Rights or shares of common stock pursuant to the exercise of the Right Warrants should read the Prospectus,
including without limitation the risk factors contained therein, prior to making any decision to invest in the Company.
As described in the Prospectus, each holder of
common stock and certain eligible warrants registered in your name or the name of your nominee is receiving, at no charge, one Subscription
Right for each share of our Common Stock beneficially owned as of the record date. Pursuant to each Subscription Right, holders will have
the right, which we refer to as the basic right, to purchase one Unit. If the holder exercise their basic right in full, they will also
have the right, or oversubscription privilege, to purchase additional Units for which other rights holders do not subscribe. Fractional
Units will not be sold.
For holders exercising their basic right, sufficient
Units may not be available to honor your full request. We will fulfill all basic rights first and should the Units underlying the number
of exercised basic rights exceed the 6,250,000 Units available, we will allocate the Units pro rata among those holders that subscribed
and exercised their basic right in proportion to the total number of basic rights exercised. As a result, if the subscription offering
is completed, you will receive whole Units to the full extent you have properly exercised your basic rights in whole or in part for such
whole Units, and Units are available.
The maximum number of our Units available for issuance in this offering
is 6,250,000 Units. If more than 6,250,000 Subscription Rights are exercised, we will allocate Units to subscribers on a pro-rata basis
based on the total number of Subscription Rights exercised. In addition, the maximum number of shares of our Common Stock available for
issuance in this offering is 12,500,000 shares, including the shares of Common Stock comprising the Units and pursuant to the exercise
of the Right Warrants comprising the units. If at any time the issuance of shares of Common Stock pursuant to the exercise of Right Warrants
comprising the units would exceed such share limitation, any issued and outstanding Right Warrants that remain unexercised will immediately
expire worthless.
In the event that the holder purchases all Units
available to it pursuant to its basic rights, holders may also exercise an oversubscription privilege to purchase a portion
of Units that are not purchased by other holders through the exercise of their basic rights, subject to availability. If
the number of Units remaining after the exercise of all basic rights is not sufficient to satisfy all requests for Units
pursuant to oversubscription privilege, we will allocate the available Units pro rata among rights holders in proportion to the number
of oversubscription Units for which they have subscribed. The subscription agent will determine the oversubscription allocation based
on the formula described above.
The maximum number of our Units available for issuance in this offering
is 6,250,000 Units. If more than 6,250,000 Subscription Rights are exercised, we will allocate Units to subscribers on a pro-rata basis
based on the total number of Subscription Rights exercised. In addition, the maximum number of shares of our Common Stock available for
issuance in this offering is 12,500,000 shares, including the shares of Common Stock comprising the Units and pursuant to the exercise
of the Right Warrants comprising the units. If at any time the issuance of shares of Common Stock pursuant to the exercise of Right Warrants
comprising the units would exceed such share limitation, any issued and outstanding Right Warrants that remain unexercised will immediately
expire worthless.
Each holder will be required to submit payment
in full for all the Units it wishes to buy with its oversubscription privilege. Because we will not know the total number of unsubscribed
Units prior to the expiration of the Subscription Rights, if holders wish to maximize the number of Units they may purchase pursuant to
the oversubscription privilege, they will need to deliver payment in an amount equal to the aggregate initial price for the maximum number
of Units available to holders, assuming that no holders other than the holder has purchased any Units pursuant to the basic rights and oversubscription privilege. To the extent the amount paid by holders in connection with the exercise of the oversubscription
privilege is higher than the aggregate subscription payment of the number of unsubscribed Units actually received by holders pursuant
to the oversubscription privilege, holder will be allocated only the number of unsubscribed Units available to the holder, and any excess
subscription payment will be promptly returned to holder, without interest or penalty, after the expiration of this offering.
Only whole numbers of shares of common stock and
Right Warrants exercisable for whole numbers of shares will be issuable to you in this offering; any right to a fractional share to which
you would otherwise be entitled will be terminated, without consideration to you.
The Company can provide no assurances that each
holder will actually be entitled to purchase the number of Units subscribed for pursuant to the exercise of its oversubscription privilege
in full at the expiration of the offering. While we will seek to honor oversubscription requests in full, if the oversubscription requests
exceed the number of Units available, we will allocate the available Units pro rata among the rights holders in proportion to the number
of oversubscription Units for which they have subscribed. Equiniti Trust Company, LLC will act as the subscription agent in connection
with this offering and will determine the oversubscription allocation.
The Subscription Rights and Right Warrants will be evidenced by a Non-Transferable
Subscription Right Warrant Certificate and Transferable Right Warrant Certificate registered in the holder’s name or its nominee
and will cease to have any value after their respective expiration dates.
We are asking persons who hold shares of common
stock beneficially or issuable upon the conversion of our preferred stock and who have received the Subscription Rights or Right Warrants
distributable with respect to those shares through a broker, dealer, custodian bank or other nominee (including any mobile investment
platform), as well as persons who hold the shares of common stock directly and prefer to have such institutions effect transactions relating
to the Subscription Rights or Right Warrants on their behalf, to contact the appropriate institution or nominee and request it to effect
the transactions for them.
All commissions, fees and other expenses (including
brokerage commissions and transfer taxes), other than fees and expenses of the subscription agent, the information agent and the dealer-manager,
incurred in connection with the exercise of the Subscription Rights or Right Warrants will be for the account of the holder of the Subscription
Rights or Right Warrants, and none of such commissions, fees or expenses will be paid by the Company or the subscription agent.
Enclosed are copies of the following documents:
| 2. | Instructions as to Use of CytoSorbents Corporation Non-Transferable Subscription Rights; |
| 3. | Instructions as to Use of CytoSorbents Corporation Transferable Right Warrants; |
| 4. | A form of letter which may be sent to your clients for whose accounts you hold shares of our common stock registered in your name
or the name of your nominee; |
| 5. | Beneficial Owner Election; and |
| 6. | Nominee Holder Certificate. |
Your prompt action is requested. To exercise the Subscription Rights
and Right Warrants, as indicated in the Prospectus, holders should deliver to the subscription agent the properly completed and signed
(i) Non-Transferable Subscription Right Warrant Certificate with payment of the Unit Subscription Price for each Unit subscribed
for and (ii) Transferable Right Warrant Certificate for the applicable Right Warrants exercised with payment of the applicable exercise
price. The subscription agent must receive the Non-Transferable Subscription Right Warrant Certificate with payment of the initial price
for the Units and the Transferable Right Warrant Certificate for the applicable Right Warrants exercised with payment of the applicable
exercise price prior to their respective expiration dates. Once a holder has exercised its Subscription Right or Right Warrants, such
exercise may not be revoked, even if the holder later learns information that it considers to be unfavorable to the exercise of its Subscription
Rights or Right Warrants.
Additional copies of the enclosed materials may
be obtained from D.F. King & Co., Inc. by telephone at (212) 269-5550 (bankers and brokers) or (800) 549-6864 (all others
toll-free) or by email at CTSO@dfking.com. Any questions or requests for assistance concerning the rights offering should be directed
to the Information Agent. Any questions or requests for assistance concerning the rights offering should be directed to the Information
Agent.
| |
CYTOSORBENTS CORPORATION |
| |
|
| |
By: |
|
| |
|
Name: |
Dr. Phillip P. Chan |
| |
|
Title: |
Chief Executive Officer |
Exhibit 99.5
FORM OF LETTER TO CLIENTS OF BROKERS AND
OTHER NOMINEE HOLDERS
CYTOSORBENTS CORPORATION
6,250,000 Units
Offered Pursuant to Subscription Rights
Distributed to Stockholders
of CytoSorbents Corporation
__________, 2024
To Our Clients:
Enclosed for your consideration are (i) a prospectus, dated December
9, 2024 (the “Prospectus”), (ii) “Instructions as to Use of CytoSorbents Corporation Non-Transferable Subscription
Rights” and (iii) “Instructions as to Use of CytoSorbents Corporation Transferable Right Warrant Certificates”
relating to the rights offering being conducted by CytoSorbents Corporation, a Delaware corporation (the “Company”), of non-transferable
subscription right warrants (the “Subscription Right”) entitling holders to purchase units (a “Unit”) of securities
consisting of one share of common stock, one Series A Right Warrant to purchase one share of common stock (“Series A Right
Warrants”), one Series B Right Warrant to purchase one share of common stock (“Series B Right Warrants” and, collectively,
with the Series A Right Warrants, the “Right Warrants”) at a subscription price equal to $____ (the “Unit Subscription
Price”). The Subscription Rights will expire if not exercised prior to 5:00 p.m., Eastern time, on ______, 2025, unless we extend
or terminate the subscription offering.
The Right Warrants are exercisable commencing
on their date of issuance at an exercise price equal to (i) in the case of the Series A Right Warrants, 90% of the 5-day
volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series A Right
Warrants, rounded down to the nearest whole cent but (x) not lower than $1.00 and (y) not higher than $2.00, which is 45
days following the closing date of the subscription offering, (ii) in the case of the Series B Right Warrants, 90% of the
5-day volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series B
Right Warrants, rounded down to the nearest whole cent but (x) not lower than $2.00 and (y) not higher than $4.00, which
is 90 days following the closing date of the subscription offering.
As described in the Prospectus, each holder of
common stock and certain eligible warrants (whether beneficially owned or issuable upon the conversion of our preferred stock) will receive
one Subscription Right. Each Subscription Right entitles holders as of the record date of 5:00 p.m., Eastern time, on ________, 2024 (the
“Record Date”). Pursuant to each Subscription Right, holders will have the right, which we refer to as the basic right, to
purchase one Unit. If the holder exercise their basic right in full, they will also have the right, or oversubscription privilege, to
purchase additional Units for which other rights holders do not subscribe.
For holders exercising their basic right, sufficient
Units may not be available to honor your full request. We will fulfill all basic rights first and should the Units underlying the number
of exercised basic rights exceed the 6,250,000 Units available, we will allocate the Units pro rata among those holders that subscribed
and exercised their basic right in proportion to the total number of basic rights exercised. As a result, if the subscription offering
is completed, you will receive whole Units to the full extent you have properly exercised your basic rights in whole or in part for such
whole Units, and Units are available.
The maximum number of our Units available for issuance in this offering
is 6,250,000 Units. If more than 6,250,000 Subscription Rights are exercised, we will allocate Units to subscribers on a pro-rata basis
based on the total number of Subscription Rights exercised. In addition, the maximum number of shares of our Common Stock available for
issuance in this offering is 12,500,000 shares, including the shares of Common Stock comprising the Units and pursuant to the exercise
of the Right Warrants comprising the units. If at any time the issuance of shares of Common Stock pursuant to the exercise of Right Warrants
comprising the units would exceed such share limitation, any issued and outstanding Right Warrants that remain unexercised will immediately
expire worthless.
You will be required to submit payment in full
for all the Units you wish to buy in the rights offering. If you wish to maximize the number of Units you may purchase pursuant to your
oversubscription privilege, you will need to deliver payment in an amount equal to the estimated Unit Subscription Price for the maximum
number of Units available to you, assuming that no shareholder other than you has purchased any Units pursuant to the basic rights and
oversubscription privilege. The Company will eliminate fractional Units resulting from the exercise of the oversubscription privilege
by rounding down to the nearest whole number, with the total subscription payment being adjusted accordingly. Any excess subscription
payments received by the Equiniti Trust Company, LLC, which will act as the subscription agent for the offering, will be promptly returned,
without interest or penalty.
The Company can provide no assurances that you
will actually be entitled to purchase the number of Units subscribed for pursuant to the exercise of your oversubscription privilege in
full at the expiration of the subscription offering. Subject to the ownership limitation described below, the Company will seek to honor
the oversubscription requests in full. If oversubscription requests exceed the number of Units available, however, the Company will allocate
the available Units pro rata among the rights holders in proportion to the number of oversubscription Units for which they have subscribed.
Equiniti Trust Company, LLC will determine the oversubscription allocation. To the extent the actual number of unsubscribed Units available
to the holder pursuant to the oversubscription privilege is less than the amount actually paid for in connection with the exercise of
the oversubscription privilege, the holder will be allocated only the number of unsubscribed Units available to the holder, and any excess
subscription payment will be promptly returned to the holder, without interest or penalty, after the expiration of this offering.
The Subscription Rights are evidenced by a Non-Transferable Subscription
Right Warrant Certificate issued to shareholder of record and will cease to have any value after the expiration of the Subscription Rights.
Each of the Right Warrants will be evidenced by a Transferable Right Warrant Certificate issued to stockholders who exercised their Subscription
Rights and will cease to have any value after the applicable expiration date for each Series Right.
THE MATERIALS ENCLOSED ARE BEING FORWARDED TO YOU
AS THE BENEFICIAL OWNER OF COMMON STOCK CARRIED BY THE COMPANY IN YOUR ACCOUNT BUT NOT REGISTERED IN YOUR NAME. THE SUBSCRIPTION RIGHTS
AND RIGHT WARRANTS MAY BE EXERCISED ONLY BY US AS THE RECORD OWNER AND PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we request instructions as to whether
you wish us to elect to subscribe for any Units to which you are entitled pursuant to the terms and subject to the conditions set forth
in the Prospectus and whether you wish us to exercise the Right Warrants. However, we urge you to read the document carefully before instructing
us to exercise your Subscription Rights or Right Warrants.
If you wish to have us, on your behalf, exercise
the Subscription Rights for Units or Right Warrants for shares of common stock to which you are entitled, please so instruct us by completing,
executing and returning to us the Beneficial Owner Election form.
Your Beneficial Owner Election form to us should
be forwarded as promptly as possible in order to permit us to exercise your Subscription Rights or Series Right on your behalf in
accordance with the provisions of the rights offering. The subscription offering will expire on January 10, 2025 and the Right Warrants
will expire thereafter on each of their respective expiration dates. Please contact us for our deadline with respect to your submission
of the Beneficial Owner Election form. Once you have exercised your Subscription Rights or Right Warrants, such exercise may not be revoked,
even if you later learn information that you consider to be unfavorable to the exercise of your Subscription Rights or Right Warrants.
Additional copies of the enclosed materials may
be obtained from D.F. King & Co., Inc. by telephone at (800) 549-6864 (toll-free) or (212) 269-5550 (broker-dealers and
nominees) or by email at CTSO@dfking.com. Any questions or requests for assistance concerning the rights offering should be directed to
the Information Agent. Any questions or requests for assistance concerning the rights offering should be directed to the Information Agent.
Exhibit 99.6
THE TERMS AND CONDITIONS OF THE RIGHTS OFFERING ARE SET FORTH IN THE
COMPANY’S PROSPECTUS DATED ________, 202__ (THE “PROSPECTUS”) AND ARE INCORPORATED HEREIN BY REFERENCE. COPIES OF THE
PROSPECTUS ARE AVAILABLE UPON REQUEST FROM D.F. KING & CO., INC., THE INFORMATION AGENT, BY CALLING (212) 269-5550 (BANKERS
AND BROKERS) OR (800) 549-6864 (ALL OTHERS TOLL-FREE) OR BY EMAIL AT CTSO@DFKING.COM.
CYTOSORBENTS CORPORATION
BENEFICIAL OWNER ELECTION FORM
I (We), the beneficial owner(s) of
shares of common stock, par value $0.001 per share, of CytoSorbents Corporation, a Delaware corporation, acknowledge receipt of your
letter, the prospectus dated _________, 2024 (the “Prospectus”), and the other enclosed materials relating to the
offering of non-transferable subscription right warrants (the “Subscription Rights”) to purchase units (a “Unit”)
of securities at a subscription price equal to $____ per Unit (the “Unit Subscription Price”).
In this form, I (we) instruct you whether to exercise Subscription
Rights to purchase Units and/or whether to exercise the Right Warrants to purchase shares of common stock, pursuant to the terms and subject
to the conditions set forth in the Prospectus and the related “Form of Instructions as to use of CytoSorbents Corporation Non-Transferable
Subscription Right Warrant Certificates” and “Form of Instructions as to use of CytoSorbents Corporation Transferable
Right Warrant Certificates.” Each Unit consists of one share of common stock, one Series A Right Warrant to purchase one share of
common stock (“Series A Right Warrants”), one Series B Right Warrant to purchase one share of common stock (“Series B
Right Warrants” and, collectively, with the Series A Right Warrants, the “Right Warrants”). The Right Warrants
are exercisable commencing on their date of issuance at an exercise price equal to (i) in the case of the Series A Right Warrants,
90% of the 5-day volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series A
Right Warrants, rounded down to the nearest whole cent but (x) not lower than $1.00 and (y) not higher than $2.00, which is
45 days following the closing date of the subscription offering, (ii) in the case of the Series B Right Warrants, 90% of the
5-day volume weighted average price of our Common Stock over the 5-trading days prior to the expiration date of the Series B Right
Warrants, rounded down to the nearest whole cent but (x) not lower than $2.00 and (y) not higher than $4.00, which is 90 days
following the closing date of the subscription offering.
The share of common stock and Right Warrants comprising
the Units will separate upon the closing of the offering and will be issued separately; however, they may only be purchased as a Unit
and the Unit will not trade as a separate security.
SUBSCRIPTION RIGHTS
I (We) hereby instruct you as follows:
(CHECK THE APPLICABLE BOXES AND PROVIDE ALL REQUIRED INFORMATION)
| Box
1. |
|
|
¨ |
|
|
Please
DO NOT EXERCISE SUBSCRIPTION RIGHTS for Units.
If you checked Box 1, please sign and date this form and mail it to your broker, custodian bank or your other nominee that
holds your shares. |
| |
|
|
|
|
|
|
| Box
2. |
|
|
¨ |
|
|
Please
EXERCISE SUBSCRIPTION RIGHTS for Units as set forth below.
If you checked Box 2, please fill out the table shown below. Next, please check Box 3 and/or Box 4, as applicable, and fill
out the information indicated under Box 3 and/or Box 4, as applicable. Please then sign and date this form and mail it to your
broker, custodian bank or other nominee that holds your shares. |
| |
|
|
|
|
|
|
| |
|
|
|
|
|
The
number of Subscription Rights for which the undersigned gives instructions for exercise under the subscription privilege should not
exceed the number of Subscription Rights that the undersigned is entitled to exercise. |
| |
|
|
|
Number of
Rights
|
|
|
|
|
|
Unit
Subscription
Price |
|
|
|
|
|
Payment |
| Basic right: |
|
|
|
$________ |
|
|
x |
|
|
$________ |
|
|
= |
|
|
$ (Line
1) |
| Oversubscription
Right: |
|
|
|
$________ |
|
|
x |
|
|
$________ |
|
|
= |
|
|
$ (Line
2) |
| Total
Payment Required: |
|
|
|
$________ |
|
|
|
|
|
$________ |
|
|
|
|
|
$ (Sum
of Lines 1 and 2)
|
| Box
3. |
|
|
¨ |
|
|
Payment
in the following amount is enclosed: $________. |
| |
|
|
|
|
|
|
| Box
4. |
|
|
¨ |
|
|
Please
deduct payment of $_______ from the following account maintained by you:
The total of Box 3 and 4, together, must equal the sum of lines 1 and 2 from Box 2 above. |
| |
|
|
|
|
|
|
| |
|
|
|
|
|
Type
of Account: __________________ Account No.: __________________ |
RIGHT WARRANTS
I (We) hereby instruct you as follows:
(CHECK THE APPLICABLE BOXES AND PROVIDE ALL REQUIRED INFORMATION)
| Box
1. |
|
|
¨ |
|
|
Please
DO NOT EXERCISE RIGHT WARRANTS for shares of common stock.
If you checked Box 1, please sign and date this form and mail it to your broker, custodian bank or your other nominee that
holds your shares. |
| |
|
|
|
|
|
|
| Box
2. |
|
|
¨ |
|
|
Please
EXERCISE RIGHT WARRANTS for shares of common stock as set forth below.
If you checked Box 2, please fill out the table shown below. Next, please check Box 3 and/or Box 4, as applicable, and fill
out the information indicated under Box 3 and/or Box 4, as applicable. Please then sign and date this form and mail it to your
broker, custodian bank or other nominee that holds your shares. |
| |
|
|
|
Number
of
Rights
Exercised
|
|
|
|
|
|
Exercise
Price |
|
|
|
|
|
Payment |
| Series A Right |
|
|
|
________ |
|
|
x |
|
|
$________ |
|
|
= |
|
|
$ (Line
1) |
| Series B Right |
|
|
|
________ |
|
|
x |
|
|
$________ |
|
|
= |
|
|
$ (Line
2) |
| Box
3. |
|
|
¨ |
|
|
Payment
in the following amount is enclosed: $________ |
| |
|
|
|
|
|
|
| Box
4. |
|
|
¨ |
|
|
Please
deduct payment of $_______ from the following account maintained by you:
The total of Box 3 and 4, together, must equal the sum of lines 1, 2 and 3 from Box 2 above. |
| |
|
|
|
|
|
|
| |
|
|
|
|
|
Type
of Account: __________________ Account No.: __________________ |
| |
|
|
|
|
|
|
I (We) on my (our) behalf, or on behalf of any other person(s) on
whose behalf, or under whose directions, I am (we are) signing this form:
| · |
irrevocably elect to (i) purchase the number of
Units and (ii) exercise the Right Warrants indicated above upon the terms and conditions specified in the Prospectus; |
| · |
agree that if I (we) fail to pay for the Units or exercise
of the applicable Rights Warrant, I (we) have elected to purchase or exercise, you may exercise any remedies available to you
under law. |
Name of beneficial owner(s): |
|
|
|
|
|
|
| |
|
|
|
|
|
|
| Signature
of beneficial owner(s): |
|
|
|
|
|
|
| |
|
|
|
|
|
|
| Date: |
|
|
|
|
|
|
If you are signing in your capacity as a trustee, executor, administrator,
guardian, attorney-in-fact, agent, officer of a corporation or another acting in a fiduciary or representative capacity, please provide
the following information:
| Name: |
|
|
|
|
|
|
| |
|
|
|
|
|
|
| Capacity: |
|
|
|
|
|
|
| |
|
|
|
|
|
|
| Address
(including Zip Code): |
|
|
|
|
|
|
| |
|
|
|
|
|
|
| |
|
|
|
|
|
|
| |
|
|
|
|
|
|
| Telephone
Number: |
|
|
|
|
|
|
PLEASE MAKE SURE THAT YOU USE THE CORRECT ADDRESS. You may want to
check this address with your broker.
Exhibit 99.7
THE TERMS AND CONDITIONS OF THE RIGHTS OFFERING
ARE SET FORTH IN THE COMPANY’S PROSPECTUS DATED _______, 2024 (THE “PROSPECTUS”) AND ARE INCORPORATED HEREIN BY REFERENCE.
COPIES OF THE PROSPECTUS ARE AVAILABLE UPON REQUEST FROM D.F. KING & CO., INC., THE INFORMATION AGENT, BY CALLING (800)
549-6864 (TOLL-FREE) OR (212) 269-5550 (BROKER-DEALERS AND NOMINEES) OR BY EMAIL AT CTSO@DFKING.COM.
CYTOSORBENTS CORPORATION
UNITS SUBSCRIBED FOR UPON
EXERCISE OF SUBSCRIPTION RIGHTS AND
SHARES OF COMMON STOCK SUBSCRIBED FOR UPON
EXERCISE OF RIGHT WARRANTS
NOMINEE HOLDER CERTIFICATION
The
undersigned, a bank, broker, trustee, depository or other nominee holder of non-transferable subscription right warrants (the “Subscription
Rights”) to purchase units (a “Unit”) of securities of CytoSorbents Corporation, a Delaware corporation (the “Company”).
Each Unit consists of one share of common stock, one Series A Right Warrant to purchase one share of common stock (“Series A
Right Warrants”), one Series B Right Warrant to purchase one share of common stock (“Series B Right Warrant” and,
collectively, with the Series A Right Warrants, the “Right Warrants”) at a subscription price equal to $____ (the “Unit
Subscription Price”), as described in the Company’s prospectus dated __________, 2024 (the “Prospectus”), hereby
certifies to the Company and Equiniti Trust Company, LLC, as Subscription Agent for the rights offering, that:
(1) the undersigned has exercised on behalf
of the beneficial owners thereof (which may include the undersigned), Subscription Rights for the number of Units specified below pursuant
to the basic right (as described in the Prospectus), and on behalf of beneficial owners of Subscription Rights who have subscribed for
the purchase of additional Units pursuant to the oversubscription privilege (as described in the Prospectus), listing separately below
a number of Units corresponding to such beneficial owners’ exercised basic right and a number of Units corresponding to such beneficial
owners’ exercised oversubscription privilege (without identifying any such beneficial owner);
(2) to the extent any beneficial owner has
exercised their oversubscription privilege, each such beneficial owner’s basic right has been exercised in full; and
(3) the undersigned has exercised on behalf
of the beneficial owners thereof (which may include the undersigned), the Right Warrants for the number of common stock specified below
pursuant to the Right Warrants (as described in the Prospectus).
NUMBER
OF SHARES OWNED
ON RECORD DATE |
NUMBER
OF UNITS
SUBSCRIBED FOR
PURSUANT TO BASIC
RIGHT |
NUMBER
OF UNITS
SUBSCRIBED FOR
PURSUANT TO
OVERSUBSCRIPTION
PRIVILEGE |
| |
|
|
| |
|
|
| |
|
|
| |
|
|
NUMBER
OF SERIES A RIGHT WARRANTS
EXERCISED |
NUMBER
OF SERIES B RIGHT
WARRANTS EXERCISED |
| |
|
| |
|
| |
|
| |
|
Name of Bank, Broker, Trustee, Depository or Other Nominee:
By: ________________________
Name:______________________
Title: ______________________
Provide the following information if applicable:
Depository Trust Company (“DTC”) Participant Number
Participant:
By: ________________________
Name:______________________
Title: ______________________
DTC Subscription Confirmation Number(s)
Exhibit 99.8
FORM OF
NOTICE OF IMPORTANT TAX INFORMATION
CYTOSORBENTS CORPORATION
This notice is provided in connection with the
prospectus of CytoSorbents Corporation (the “Company”) dated ____________, 2024.
Under the U.S. federal income tax laws, distributions (including constructive
distributions) that may be made by the Company of certain non-transferable subscription right warrants (the “Subscription Rights”)
entitling holders of common stock to purchase units (a “Unit”), each of which will consist of one share of common stock, one
Series A Right Warrant to purchase one share of common stock (“Series A Right Warrants”), and one Series B Right Warrant
to purchase one share of common stock (“Series B Right Warrants” and, together with the Series A Right Warrants,
the “Right Warrants”), may be subject to backup withholding. Generally such payments will be subject to backup withholding
unless the holder (i) is exempt from backup withholding and timely and properly establishes an exemption from backup withholding
or (ii) furnishes the payer with certain identifying information (such as the registered owner’s taxpayer identification number
(“TIN”)) in the manner required. Generally, individuals are not exempt recipients whereas corporations and certain other entities
are exempt recipients. Subject to the succeeding paragraph, each holder that exercises subscription rights and wants to avoid backup withholding
must, unless an exemption applies, provide the subscription agent, as the Company’s agent in respect of the exercised subscription
rights, with such holder’s correct TIN and certain other certifications by completing the enclosed Form W-9 (Request for Taxpayer
Identification Number and Certification). The TIN that must be provided is the TIN of the record owner of the subscription rights. If
such record owner is an individual, the TIN is generally the taxpayer’s social security number. For most entities, the TIN is the
employer identification number. If the subscription rights are in more than one name or are not in the name of the actual owner, consult
the enclosed Form W-9 (Request for Taxpayer Identification Number and Certification) for additional guidelines on which number to
report. If the subscription agent is not provided with the correct TIN in connection with such payments, the holder may be subject to
a penalty imposed by the Internal Revenue Service (“IRS”).
Certain holders (including, among others, certain
corporations and foreign persons) are not subject to these backup withholding rules. In general, in order for a holder that is a “U.S.
person” for U.S. federal income tax purposes to qualify as an exempt recipient, that holder must timely submit a properly completed
Form W-9 attesting to such holder’s exempt status. See the enclosed Form W-9 (Request for Taxpayer Identification Number
and Certification) for additional instructions. In general, in order for a holder that is not a “U.S. person” for U.S. federal
income tax purposes to qualify as an exempt recipient, that holder must timely submit a properly completed Form W-8BEN, Certificate
of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals), Form W-8BENE, Certificate of
Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities) or other appropriate Form W-8, signed under
the penalties of perjury, attesting to such holder’s foreign status. Such Form W-8BEN or Form W-8BEN-E or other documentation
may be obtained from the subscription agent. Although a foreign holder may be exempt from backup withholding, payments of dividends may
be subject to withholding tax, currently at a 30% rate (or, if certain tax treaties apply, such applicable lower rate) or withholding
tax at a rate of 30% under the Foreign Account Tax Compliance Act (“FATCA”) unless an exemption from FATCA withholding
is certified. Holders are urged to consult their own tax advisors to determine whether they are exempt from withholding and reporting
requirements.
If backup withholding applies to an exercising
holder, the Company or the subscription agent, as the case may be, will be required to withhold (currently at a 24% rate) on any reportable
payments made to such holder. Backup withholding is not an additional tax. Rather, the amount of backup withholding can be credited against
the U.S. federal income tax liability of the holder subject to backup withholding, provided that the required information is timely provided
to the IRS. If backup withholding results in an overpayment of taxes, a refund may be obtained, provided that the required information
is timely provided to the IRS.
THIS DISCUSSION IS FOR INFORMATION PURPOSES
ONLY AND IS NOT TAX ADVICE. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE BACKUP WITHHOLDING RULES
TO THEM.
EXHIBIT 99.9
CytoSorbents Announces Rights Offering
Investors Must Hold or Buy CTSO Common Stock by
Close of Nasdaq Trading on
Friday December 13, 2024 to Participate
PRINCETON, NJ, December 9, 2024 — CytoSorbents
Corporation (NASDAQ: CTSO), a leader in the treatment of life-threatening conditions in the intensive care unit and cardiac surgery
using blood purification, today announced the details of its anticipated Rights Offering.
Investors
who hold or have bought CTSO stock at the close of Nasdaq trading on Friday, December 13,
2024 will be deemed stockholders of record on December 16, 2024 and, along with certain Warrantholders,
will receive a dividend at no cost of one non-transferable Subscription Right Warrant (“Subscription
Rights”) for each share of common stock owned. Each Subscription Right, when exercised
before the expiration date of 5:00PM EST on January 10, 2025, enables a Unit purchase at
a Unit subscription price of $1.00. Each Unit consists of one share of common stock and two
transferable short-term Right Warrants to purchase up to two additional shares of common
stock, if available, at specified prices described below.
All net proceeds from the offering will go to
the Company and be used for general corporate purposes and to satisfy a debt covenant where proceeds of $3.0 million to $5.0 million
will unlock $3.0 million to $5.0 million in restricted cash currently on our balance sheet on a dollar-for-dollar basis. For example,
aggregate proceeds of $5.0 million would result in increased liquidity to the Company of approximately $10.0 million in unrestricted
cash, which is expected to fund the Company’s operations through anticipated FDA and Health Canada decisions on our DrugSorb-ATR
marketing applications in 2025, and if approved or cleared, the initial launch of the product.
Each Subscription Right will provide the stockholder
the opportunity, but not the obligation, to purchase a Unit at a Unit subscription price of $1.00. Each Unit consists of:
| · | One
share of common stock |
| · | One
Series A Right Warrant to purchase an additional share of common stock 45 days from the initial
Unit subscription closing date, or February 24, 2025, at an exercise price that is 90% of
the 5-day volume weighted average price, but no lower than $1.00 and no higher than $2.00,
irrespective of the share price at the time. |
| · | One
Series B Right Warrant to purchase an additional share of common stock 90 days from the initial
unit subscription closing date, or April 10, 2025, at an exercise price that is 90% of the
5-day volume weighted average price, but no lower than $2.00 and no higher than $4.00, irrespective
of the share price at the time. |
A short presentation on this Rights Offering
has been filed with the SEC as a free writing prospectus and can be found in the presentation section on our investor relations website
at https://ir.cytosorbents.com/events-presentations.
A maximum of 6.25 million Units will be offered
by the Company, and an additional 6.25 million common shares will be reserved for the exercise of the short-term Right Warrants. Once
all 12.5 million shares are issued, all outstanding and unexercised Subscription Rights and Series A and B Right Warrants comprising
the Units will expire worthless.
We will fill all exercised basic Subscription
Rights first. Should basic subscriptions exceed available Units, we will allocate the Units pro-rata among stockholders based on their
individual exercise of basic Subscription Rights in proportion to the total number of basic Subscription Rights exercised.
Stockholders who exercise their respective full
basic Subscription Rights will also have over-subscription privileges giving them the option to subscribe for any Units that remain unsubscribed
at the expiration of the Subscription Rights. If the number of Units remaining after the exercise of all basic Subscription Rights is
not sufficient to satisfy all requests for Units pursuant to this oversubscription privilege, we will allocate the available Units pro
rata among holders with over-subscription privileges in proportion to the number of oversubscription Units for which they have subscribed.
The Company expects that the information agent
for the Rights Offering will mail Subscription Rights certificates and a copy of the prospectus and prospectus supplement for the offering
to stockholders as of the record date beginning on or about December 16, 2024. Holders of shares of common stock in “street name”
through a brokerage account, bank or other nominee will not receive physical Subscription Rights certificates and must instruct their
broker, bank or nominee whether to exercise Subscription Rights on their behalf. For any questions or further information about this
Rights Offering, please call D.F. King & Co., Inc., the information agent for the offering, at (800) 549-6864 (toll-free) or (212)
269-5550 (broker-dealers and nominees).
The Rights Offering
will be made pursuant to CytoSorbents’ effective shelf registration statement on Form S-3 (File No. 333-281062), and a related
prospectus supplement containing the detailed terms of the Rights Offering to be filed with the SEC. The information
in this press release is not complete and is subject to change. This press release shall not constitute an offer to sell or a solicitation
of an offer to buy any securities, nor shall there be any offer, solicitation or sale of the securities in any state or jurisdiction
in which such offer, solicitation or sale would be unlawful under the securities laws of such state or jurisdiction. The Rights Offering
will be made only by means of a prospectus and a related prospectus supplement. Copies of the prospectus and related prospectus
supplement, when they become available, will be distributed to all eligible stockholders as of the Rights Offering record date and may
also be obtained free of charge at the website maintained by the SEC at www.sec.gov or by contacting the information
agent for the Rights Offering.
About CytoSorbents Corporation (NASDAQ: CTSO)
CytoSorbents Corporation is a leader in
the treatment of life-threatening conditions in the intensive care unit and cardiac surgery through blood purification. CytoSorbents’
proprietary blood purification technologies are based on biocompatible, highly porous polymer beads that can actively remove toxic substances
from blood and other bodily fluids by pore capture and surface adsorption. Cartridges filled with these beads can be used with standard
blood pumps already in the hospital (e.g. dialysis, ECMO, heart-lung machines). CytoSorbents’ technologies are used in a number
of broad applications. Specifically, two important applications are 1) the removal of blood thinners during and after cardiothoracic
surgery to reduce the risk of severe bleeding and 2) the removal of inflammatory agents in common critical illnesses such as sepsis,
burn injury, trauma, lung injury, liver failure, cytokine release syndrome, and pancreatitis that can lead to massive inflammation, organ
failure and patient death. In these diseases, the risk of death can be extremely high, and there are few, if any, effective treatments.
CytoSorbents’ lead product, CytoSorb®,
is approved in the European Union and distributed in 76 countries worldwide, with more than a quarter million devices used
cumulatively to date. CytoSorb was originally launched in the European Union under CE mark as the first cytokine adsorber.
Additional CE mark extensions were granted for bilirubin and myoglobin removal in clinical conditions such as liver disease and trauma,
respectively, and for ticagrelor and rivaroxaban removal in cardiothoracic surgery procedures. CytoSorb has also
received FDA Emergency Use Authorization in the United States for use in adult critically ill COVID-19 patients with
impending or confirmed respiratory failure, to reduce pro-inflammatory cytokine levels. CytoSorb is not yet approved in the United
States.
In the U.S. and Canada, CytoSorbents is developing
the DrugSorb™-ATR antithrombotic removal system, an investigational device based on an equivalent polymer technology to CytoSorb,
to reduce the severity of perioperative bleeding in high-risk surgery due to blood thinning drugs. It has received two FDA Breakthrough
Device Designations: one for the removal of ticagrelor and another for the removal of the direct oral anticoagulants (DOAC)
apixaban and rivaroxaban in a cardiopulmonary bypass circuit during urgent cardiothoracic procedures. In September 2024, the Company
submitted a De Novo medical device application to the U.S. FDA requesting marketing approval to reduce the severity of perioperative
bleeding in CABG patients on the antithrombotic drug ticagrelor, which was accepted for substantive review in October 2024. In November
2024, the Company received its Medical Device Single Audit Program (MDSAP) certification and submitted its Medical Device License (MDL)
application to Health Canada. DrugSorb-ATR is not yet granted or approved in the United States and Canada, respectively.
The Company has numerous marketed products and
products under development based upon this unique blood purification technology protected by many issued U.S. and international
patents and registered trademarks, and multiple patent applications pending, including ECOS-300CY®, CytoSorb-XL™, HemoDefend-RBC™,
HemoDefend-BGA™, VetResQ®, K+ontrol™, DrugSorb™, ContrastSorb, and others. For more information, please visit the
Company’s website at https://ir.cytosorbents.com/ or
follow us on Facebook and X.
Forward-Looking Statements
This press
release includes forward-looking statements intended to qualify for the safe harbor from liability established by the Private Securities
Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, statements about our plans, objectives,
future targets and outlooks for our business, representations and contentions, and the outcome of our regulatory submissions, and are
not historical facts and typically are identified by use of terms such as “may,” “should,” “could,”
“expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,”
“potential,” “continue” and similar words, although some forward-looking statements are expressed differently.
You should be aware that the forward-looking statements in this press release represent management’s current judgment and expectations,
but our actual results, events and performance could differ materially from those in the forward-looking statements. Factors which could
cause or contribute to such differences include, but are not limited to, the risks discussed in our Annual Report on Form 10-K, filed
with the SEC on March 14, 2024, as updated by the risks reported in our Quarterly Reports on Form 10-Q, and in the press releases and
other communications to shareholders issued by us from time to time which attempt to advise interested parties of the risks and factors
which may affect our business. We caution you not to place undue reliance upon any such forward-looking statements. We undertake no obligation
to publicly update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, other
than as required under the Federal securities laws.
Please Click to Follow Us on Facebook and X
U.S. Company
Contact:
Peter J. Mariani, Chief Financial Officer
305 College Road East
Princeton, NJ 08540
pmariani@cytosorbents.com
Investor Relations Contact:
Aman Patel, CFA
Investor Relations, ICR-Westwicke
(443) 450-4191
ir@cytosorbents.com
v3.24.3
| X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
| Name: |
dei_AmendmentFlag |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
| Name: |
dei_DocumentPeriodEndDate |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:dateItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
| Name: |
dei_DocumentType |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:submissionTypeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
| Name: |
dei_EntityAddressAddressLine1 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Definition
+ References
+ Details
| Name: |
dei_EntityAddressCityOrTown |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the state or province.
| Name: |
dei_EntityAddressStateOrProvince |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:stateOrProvinceItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
CytoSorbents (NASDAQ:CTSO)
Historical Stock Chart
From Dec 2024 to Jan 2025
CytoSorbents (NASDAQ:CTSO)
Historical Stock Chart
From Jan 2024 to Jan 2025
