As filed with the Securities and Exchange Commission on August 13,
2024.
Registration No. 333-281080
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VIRPAX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
2834 |
|
82-1510982 |
(State or other jurisdiction of
incorporation or organization) |
|
(Primary Standard Industrial
Classification Code Number) |
|
(I.R.S. Employer
Identification No.) |
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
(610) 727-4597
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Gerald Bruce
Chief Executive Officer
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
(610) 727-4597
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
with copies to:
Leslie Marlow, Esq.
Patrick J. Egan, Esq.
Melissa Palat Murawsky, Esq.
Blank Rome LLP
1271 Avenue of the Americas
New York, NY 10020
(212) 885-5000 |
|
Joseph M. Lucosky, Esq.
Scott E. Linsky, Esq.
Lucosky Brookman LLP
101 Wood Avenue South, 5th Floor
Woodbridge, NJ 08830
(732) 395-4400 |
Approximate date of commencement of proposed
sale to public: As soon as practicable after this registration statement is declared effective.
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act check the following box. ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier
effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration number of the earlier
effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
☐ |
Accelerated filer |
☐ |
Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
|
|
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 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to Section 8(a),
may determine.
The information in
this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities, and we
are not soliciting an offer to buy these securities, in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS |
SUBJECT
TO COMPLETION |
DATED
AUGUST 13, 2024 |
![](https://www.sec.gov/Archives/edgar/data/1708331/000121390024067945/image_001.jpg)
Virpax Pharmaceuticals, Inc.
6,422,018 Shares
of Common Stock
Up to 6,422,018
Pre-Funded Warrants to Purchase 6,422,018 Shares of Common Stock
Up to 6,422,018 Shares of Common Stock Underlying such Pre-Funded Warrants
We are offering on
a best efforts basis up to 6,422,018 shares of our Common Stock, par value $0.00001 per share (the “Common Stock”).
We are also offering
to each purchaser, if any, whose purchase of shares of Common Stock in this offering would otherwise result in the purchaser, together
with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of such purchaser, 9.99%) of
our outstanding Common Stock immediately following the consummation of this offering, the opportunity to purchase, if the purchaser so
chooses, pre-funded warrants (the “Pre-Funded Warrants”), in lieu of shares of Common Stock that would otherwise result in
the purchaser’s beneficial ownership exceeding 4.99% (or, at the election of such purchaser, 9.99%) of our outstanding shares of
Common Stock. There can be no assurance that we will sell any of the Pre-Funded Warrants
being offered. Each Pre-Funded Warrant will be immediately exercisable for one share of Common Stock and may be exercised at any
time until all of the Pre-Funded Warrants are exercised in full. The purchase price of each Pre-Funded Warrant will equal the price per
share at which one share of Common Stock is being sold to the public in this offering, minus $0.00001, and the exercise price of each
Pre-Funded Warrant will be $0.00001 per share.
For each Pre-Funded Warrant
we sell, the number of shares of Common Stock we are offering will be decreased on a one-for-one basis. This offering also relates to
the shares of Common Stock issuable upon exercise of any Pre-Funded Warrants sold in this offering. We refer to the shares of Common Stock
and Pre-Funded Warrants to be sold in this offering collectively as the “Securities.”
Our Common Stock
is listed on the Nasdaq Capital Market under the symbol “VRPX”. The last reported sale price of our Common Stock on Nasdaq
on August 9, 2024 was $1.09 per share. We have assumed a public offering price of $1.09 per share of Common Stock, which was the last
reported sale price on Nasdaq of our shares of Common Stock on August 9, 2024. The actual offering price per share of Common Stock and
Pre-Funded Warrant will be negotiated between us and the investors, in consultation with the placement agent based on, among other things,
the trading price of our Common Stock prior to the offering and may be at a discount to the current market price. Therefore, the assumed
public offering price used throughout this prospectus may not be indicative of the final offering price. In addition, there is no established
public trading market for the Pre-Funded Warrants, and we do not expect a market to develop. We do not intend to apply for a listing
of the Pre-Funded Warrants on any national securities exchange.
We have engaged RBW
Capital Partners LLC acting through Dominari Securities LLC to act as our exclusive placement agent (the “Placement Agent”)
in connection with this offering. The Placement Agent has agreed to use its reasonable best efforts to arrange for the sale of the Securities
offered by this prospectus. The Placement Agent is not purchasing or selling any of the Securities we are offering, and the Placement
Agent is not required to arrange the purchase or sale of any specific number of Securities or dollar amount. We have agreed to pay to
the Placement Agent the fees set forth in the table below, which assumes that we sell all of the Securities offered by this prospectus.
See “Plan of Distribution” for more information regarding these arrangements.
The Securities are expected
to be issued in a single closing and the public offering price per share of Common Stock and Pre-Funded Warrant will be fixed for the
duration of this offering. We will deliver all Securities to be issued in connection with this offering delivery versus payment (“DVP”)/receipt
versus payment (“RVP”) upon receipt of investor funds received by us. Accordingly, neither we nor the Placement Agent have
made any arrangements to place investor funds in an escrow account or trust account since the Placement Agent will not receive investor
funds in connection with the sale of the securities offered hereunder. There is no minimum offering requirement as a condition
of closing of this offering. Because there is no minimum offering amount required as a condition to closing this offering, we may sell
fewer than all of the Securities offered hereby, which may significantly reduce the amount of proceeds received by us, and investors
in this offering will not receive a refund in the event that we do not sell an amount of Securities sufficient to pursue our business
goals described in this prospectus. Further, any proceeds from the sale of Securities offered by us will be available for our immediate
use, despite uncertainty about whether we would be able to use such funds to effectively implement our business plan. See the section
entitled “Risk Factors” on page 9 of this prospectus for more information.
This offering will
terminate on September 15, 2024, unless the offering is fully subscribed before that date, or we decide to terminate the offering (which
we may do at any time in our discretion) prior to that date. We will bear all costs associated with the offering.
We are an emerging growth
company under the Jumpstart our Business Startups Act of 2012 (the “JOBS Act”), and, as such, may elect to comply with certain
reduced public company reporting requirements for this prospectus and future filings.
You
should read this prospectus, together with additional information described under the heading “Where You Can Find More Information”
carefully before you invest in any of our Securities.
Investing
in our Securities involves substantial risks. Please read carefully the section entitled “Risk Factors” beginning on page
9 of this prospectus, as well as the other information included or incorporated by reference in this prospectus, before buying any of
our Securities.
| |
Per Share | | |
Per Pre- Funded Warrant | | |
Total | |
Public offering price | |
$ | | | |
$ | | | |
$ | | |
Placement Agent’s fees(1) | |
$ | | | |
$ | | | |
$ | | |
Proceeds to us, before expenses(2) | |
$ | | | |
$ | | | |
$ | | |
| (1) | We
have agreed to pay the Placement Agent a total cash fee equal to 2.5% of the gross proceeds of the offering. We have also agreed to reimburse
the Placement Agent for its accountable offering-related legal and other expenses in an amount up to $60,000. See “Plan of Distribution”
for a description of the compensation payable to the Placement Agent. |
| (2) | The
amount of proceeds to us presented in the table does not give effect to any exercise of any Pre-Funded Warrants. |
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy
or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
Delivery of the Securities is expected on
or about , 2024.
Sole Placement Agent
RBW
Capital Partners LLC
Securities offered through Dominari Securities
LLC, a broker-dealer registered with the Securities and
Exchange Commission and a member of the Financial Industry Regulatory Authority,
Inc. (FINRA)
The date of this prospectus
is , 2024
TABLE OF CONTENTS
The registration statement
containing this prospectus, including the exhibits to the registration statement, provides additional information about us and the Securities
offered under this prospectus. The registration statement, including the exhibits, can be read on our website and the website of the Securities
and Exchange Commission. See “Where You Can Find More Information.”
Information contained
in, and that can be accessed through our website, www.virpaxpharma.com, shall not be deemed to be part of this prospectus
or incorporated herein by reference and should not be relied upon by any prospective investors for the purposes of determining whether
to purchase the Common Stock offered hereunder.
Unless the context otherwise
requires, the terms “we,” “us,” “our,” “the Company,” “Virpax” and “our
business” refer to Virpax Pharmaceuticals, Inc. and “this offering” refers to the offering contemplated in this prospectus.
ABOUT THIS PROSPECTUS
We and the Placement Agent have not authorized
anyone to provide any information to you or to make any representations other than those contained, or incorporated by reference, in this
prospectus, any amendment or supplement to this prospectus, or in any free writing prospectuses prepared by or on behalf of us or to which
we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that
others may give you. This prospectus is an offer to sell only the securities offered hereby, and only under circumstances and in jurisdictions
where offers and sales are permitted. You should not assume that the information contained in this prospectus or any applicable prospectus
supplement is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated
by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus or any
applicable prospectus supplement is delivered, or securities are sold, on a later date. Our business, financial condition, results of
operations and prospects may have changed since the date on the front cover of this prospectus.
We may also file a prospectus
supplement or post-effective amendment to the registration statement of which this prospectus forms a part that may contain
material information relating to this offering. The prospectus supplement or post-effective amendment may also add, update or
change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and the applicable
prospectus supplement or post-effective amendment, you should rely on the prospectus supplement or post-effective amendment,
as applicable. Before purchasing any securities, you should carefully read this prospectus, any post-effective amendment, and
any applicable prospectus supplement, together with the additional information described under the heading “Where You Can Find More
Information” and “Incorporation of Certain Information by Reference.”
Neither we nor the Placement Agent have taken
any action to permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose
is required, other than in the United States.
For investors outside the United States:
We have not, and the Placement Agent has not, done anything that would permit this offering or possession or distribution of this prospectus
or any applicable free writing prospectus in any jurisdiction where action for that purpose is required, other than in the United States.
Persons outside the United States who come into possession of this prospectus and any applicable free writing prospectus must inform
themselves, and observe any restrictions relating to, the offering of the Securities and the distribution of this prospectus outside the
United States.
This prospectus contains summaries of certain
provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information.
All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have
been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a
part, and you may obtain copies of those documents as described below under the section entitled “Where You Can Find More Information.”
INDUSTRY AND MARKET DATA
Unless otherwise indicated, information in this
prospectus concerning economic conditions, our industry, our markets and our competitive position is based on a variety of sources, including
information from third-party industry analysts and publications and our own estimates and research. Some of the industry and market data
contained in this prospectus are based on third-party industry publications. This information involves a number of assumptions, estimates
and limitations.
The industry publications,
surveys and forecasts and other public information generally indicate or suggest that their information has been obtained from sources
believed to be reliable. We believe this information is reliable as of the applicable date of its publication, however, we have not independently
verified the accuracy or completeness of the information included in or assumptions relied on in these third-party publications.
In addition, the market and industry data and forecasts that may be included in this prospectus, any post-effective amendment
or any prospectus supplement may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various
factors, including those discussed under the heading “Risk Factors” contained in this prospectus, any post-effective amendment,
any prospectus supplement and under similar headings in the other documents that are incorporated by reference into this prospectus. Accordingly,
investors should not place undue reliance on this information.
TRADEMARKS, SERVICE
MARKS AND TRADE NAMES
We own or have rights
to use a number of registered and common law trademarks, service marks and/or trade names in connection with our business in the United States
and/or in certain foreign jurisdictions.
Solely for convenience,
the trademarks, service marks, logos and trade names referred to in this prospectus are without the ® and ™
symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable
law, our rights or the rights of the applicable licensors to these trademarks, service marks and trade names. This prospectus contains
additional trademarks, service marks and trade names of others, which are the property of their respective owners. All trademarks, service
marks and trade names appearing in this prospectus are, to our knowledge, the property of their respective owners. We do not intend our
use or display of other companies’ trademarks, service marks, copyrights or trade names to imply a relationship with, or endorsement
or sponsorship of us by, any other companies.
Virpax® is a registered
tradename for Virpax® Pharmaceuticals, Inc. It was registered under the United States Patent and Trademark Office under serial number
87897821 on December 11, 2018. Our logo is a registered tradename for Virpax® Pharmaceuticals, Inc. It was registered under the United
States Patent and Trademark Office under serial number 87897809 on January 1st, 2019. For the purpose of this prospectus, Virpax®
will be referred to as Virpax. Additionally, “we”, “our”, “the company” will be synonymous with Virpax.
We have obtained a notice of allowance for our trademark AnQlar™. We have filed for trademark protection with the USPTO for Probudur™,
Epoladerm™, NobrXiol™, and Envelta™.
PROSPECTUS SUMMARY
The following summary highlights information
contained elsewhere in this prospectus or incorporated by reference herein and does not contain all the information that may be important
to purchasers of our Securities. Prospective purchasers of our Securities should carefully read the entire prospectus and any applicable
prospectus supplement, including the risks of investing in our Securities discussed under the heading “Risk Factors” contained
in this prospectus, the applicable prospectus supplement and under similar headings in the other documents that are incorporated by reference
into this prospectus. Prospective purchasers of our Securities should also carefully read the information incorporated by reference into
this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Our Company
We are a preclinical-stage
pharmaceutical company focused on developing novel and proprietary drug delivery systems across various pain indications in order to enhance
compliance and optimize each product candidate in our pipeline. Our drug-delivery systems and drug-releasing technologies being developed
are focused on advancing non-opioid and non-addictive pain management treatments and treatments for central nervous system (“CNS”)
disorders to enhance patients’ quality of life.
We have exclusive global
rights to the following proprietary patented technologies: (i) Molecular Envelope Technology (“MET”) that uses an intranasal
device to deliver enkephalin for the management of severe pain, including post cancer pain (Envelta™) and post-traumatic stress
disorder (“PTSD”), (ii) Injectable “local anesthetic” Liposomal Technology for postoperative pain management (Probudur™),
and (iii) Investigational formulation delivered via the nasal route to enhance pharmaceutical-grade cannabidiol (“CBD”) transport
to the brain (“NobrXiol™”, formerly VRP324) to potentially treat epileptic seizures associated with Lennox-Gastaut syndrome
(LGS) and Dravet syndrome (DS) in pediatric patients two years of age and older. We are also exploring value creative opportunities for
our two nonprescription product candidates including seeking regulatory approval for commercialization of such products: AnQlar™,
which is being developed as a 24-hour prophylactic viral barrier to inhibit viral infection by influenza or SARS-CoV-2, and Epoladerm™,
which is a topical diclofenac epolamine metered dosed spray film formulation being developed to manage pain associated with osteoarthritis.
Our portfolio currently consists of multiple
preclinical stage product candidates: Epoladerm, Probudur, Envelta, AnQlar and NobrXiol. We anticipate commencing clinical trials for
Probudur in first quarter of 2025 and Envelta in first half of 2025, but there can be no assurances that the trials will commence on
the anticipated timeline presented, or at all.
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Recent Developments
Reverse Stock Split
On February 29, 2024,
we filed a certificate of amendment to our Amended and Restated Certificate of Incorporation for purposes of effecting a 1-for-10 reverse
stock split (the “Reverse Split”) of our outstanding shares of Common Stock such that, effective upon March 1, 2024, the day
after the filing thereof, every 10 issued and outstanding shares of our Common Stock were subdivided and reclassified into one validly
issued, fully paid and non-assessable share of our Common Stock.
Litigation
On February 29, 2024, Sorrento Therapeutics,
Inc. (“Sorrento”), and Scilex Pharmaceuticals Inc. (“Scilex” and together with Sorrento, the “Plaintiffs”)
and the Company entered into a Settlement Agreement and Mutual Release (the “Settlement Agreement”) to fully resolve all
claims by the Plaintiffs against the Company related to the litigation captioned Sorrento Therapeutics, Inc. and Scilex
Pharmaceuticals Inc. v. Anthony Mack and Virpax Pharmaceuticals, Inc., Case No. 2021-0210-PAF (the “Action”), subject
to the entry by the United States Bankruptcy Court for the Southern District of Texas, which is handling the Sorrento bankruptcy filing
(the “Bankruptcy Court”), of an order approving the Settlement Agreement (the “Settlement Order”). On March 1,
2024, the Plaintiffs filed a motion to approve the Settlement Agreement and grant the related relief with the Bankruptcy Court. On March
14, 2024, the Bankruptcy Court entered an order approving the Settlement Agreement and on March 20th the Plaintiffs filed a Stipulation
of Dismissal with the Chancery Court of the State of Delaware (the “Chancery Court”) dismissing the Action. See “Part
II—Item 1—Legal Proceedings” in our Quarterly Report on Form 10-Q for the three and six months ended June 30, 2024
incorporated herein by reference for additional information regarding the litigation with the Plaintiffs.
As settlement consideration,
we agreed to pay Sorrento and Scilex a total cash payment of $6 million, of which $3.5 million was paid two business days after the date
that the Settlement Order was entered by the Bankruptcy Court (the “Effective Date”), which payment was made on March 18,
2024 and the remaining $2.5 million was paid on July 8, 2024. Additionally, we agreed to pay to Plaintiffs royalties of 6% of annual net
sales of products developed from drug candidates Epoladerm, Probudur and Envelta until the earlier of the expiration of the last-to-expire
valid patent claim of such product and the expiration of any period of regulatory exclusivity for such product.
Pursuant to the Settlement
Agreement, each of the Plaintiffs and we provided mutual releases of all claims as of the Effective Date, whether known or unknown, arising
from any allegations set forth in the Action. Plaintiffs’ release relates to claims against us only. Plaintiffs’ release as
to us was effective upon our initial payment of $3.5 million, and our release of the Plaintiffs was effective on the Effective Date.
The Plaintiffs can still
pursue claims against Mr. Mack. Our bylaws require us to “indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of the fact that such person is or was a director or officer of the Corporation,
or, while a director or officer of the Corporation….” Such indemnification, however, is limited to circumstances where
the covered person “acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests
of the Corporation….” Mr. Mack may attempt to claim he is entitled to indemnification, should the Chancery Court find
him liable for damages in the Action. Given the findings in the Memorandum Opinion issued in the Action, we believe we have a strong
position that Mr. Mack would not be entitled to indemnification. There is a risk, however, that a court could find he is entitled
to such indemnification. Additionally, per Section 7.6 of the bylaws, we had been advancing Mr. Mack’s attorneys’ fees and
costs for the Action. It is likely Mr. Mack will contend he is still entitled to advancement of any fees and/or costs for the Action
going forward and may seek judicial intervention. However, as per the bylaws, Mr. Mack is only entitled to advancement of expenses for
indemnifiable actions. As noted above, given the Memorandum Opinion in the Action, we believe that we have a strong position
that Mr. Mack is not entitled to indemnification, and therefore, not entitled to advancement of expenses. However, there is a risk that
a court could find that Mr. Mack is entitled to such advancement. Further, Mr. Mack may attempt to seek damages from us based on the Chancery
Court’s final judgment on damages under the theory of joint and several liability and/or seek contribution from us for any monetary
judgment.
The Chancery Court is
aware that Plaintiffs have settled with us and that the Settlement Agreement fully releases us from any claims or damages the Plaintiff
has against us, related to the Action. Given the Settlement Agreement does not release Mr. Mack from liability related to the Action,
the Chancery Court has requested supplemental briefing as to whether the Chancery Court can dismiss us from the lawsuit, as well as any
claims Mr. Mack has against us arising from the Action. While we believe that any damages assessed may be awarded against Mr. Mack alone,
Plaintiffs cannot seek additional damages from us. However, there is a risk that Mr. Mack will still seek contribution from us for any
damages claim arising from the Action and, there is a risk that the Chancery Court will rule in Mr. Mack’s favor. Any such amounts
for indemnification, contribution or other amounts awarded by the Chancery Court in Mr. Mack’s favor could be significant.
No further reimbursements are permitted from our
insurance policy with respect to the litigation. Accordingly, if Mr. Mack were to successfully seek indemnification from us, we would
have to pay such amounts in cash which would further reduce our cash position.
Nasdaq Compliance
Stockholders’
Equity. On April 2, 2024, we received a notification letter from the Listing Qualifications Staff of the Nasdaq Stock Market
LLC (“Nasdaq”) notifying us that our stockholders’ equity as reported in our Annual Report on Form 10-K for the period
ended December 31, 2023 (the “Annual Report”), did not meet the minimum stockholders’ equity requirement for continued
listing on the Nasdaq Capital Market. Nasdaq Listing Rule 5550(b)(1) requires companies listed on the Nasdaq Capital Market to maintain
stockholders’ equity of at least $2,500,000 (the “Minimum Stockholders’ Equity Rule”). In the Annual Report,
we reported stockholders’ equity of $1,934,321, which is below the minimum stockholders’ equity required for continued listing
pursuant to Nasdaq Listing Rule 5550(b)(1). Additionally, as of the date of this prospectus, we do not meet the alternative Nasdaq continued
listing standards under Nasdaq Listing Rules. In our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2024, we reported
stockholders’ deficit of $2,794,498.
Pursuant to Nasdaq’s Listing Rules,
we were given 45 calendar days (or until May 17, 2024), to submit a plan to evidence compliance with the Minimum Stockholders’
Equity Rule (a “Compliance Plan”). We submitted a Compliance Plan within the required time period, which included raising
funds in public offerings. On July 29, 2024, we received notice from the Listing Qualifications
Staff (the “Staff”) of The Nasdaq that we were granted an extension through
September 30, 2024 to regain compliance with
Nasdaq Listing Rule 5550(b)(1). There can be no assurance that we will be able to comply with the Minimum Stockholders’
Equity Rule, even if the maximum offering amount is raised in this offering, due to our cash burn rate and operating expenses. In which
case, we will be required to raise additional funds after this offering in order to be compliant.
In the event we fail to evidence compliance with
the Minimum Stockholders’ Equity Rule within any allotted period, we will have the right to a hearing before Nasdaq’s Hearing
Panel (the “Panel”). The hearing request would stay any suspension or delisting action pending the conclusion of the hearing
process and the expiration of any additional extension period granted by the Panel following the hearing.
There can be no assurance that we will be able
to comply with the minimum stockholders’ equity. Even if the maximum offering amount is raised due to our cash burn rate and payment
obligations, we will be required to raise additional funds after this offering in order to be compliant.
Minimum Bid Price. On
June 28, 2024, we received written notice from the Listing Qualifications Department of Nasdaq notifying us that for the preceding 30
consecutive business days (May 15, 2024 through June 27, 2024), the Company’s Common Stock did not maintain a minimum closing bid
price of $1.00 (“Minimum Bid Price Rule”) per share as required by Nasdaq Listing Rule 5550(a)(2).
In accordance
with Nasdaq Listing Rule 5810(c)(3)(A), we were given a compliance period of 180 calendar days, or until December 26, 2024, to regain
compliance with Nasdaq Listing Rule 5550(a)(2).
On July
22, 2024, the Company received a notice from the Listing Qualifications Department of Nasdaq notifying the Company that the staff has
determined that for 10 consecutive business days, from July 8, 2024 to July 19, 2024, the closing bid price of the Company’s Common
Stock had been at $1.00 per share or greater. Accordingly, the staff has determined that the Company has regained compliance with Listing
Rule 5550(a)(2).
Financings
May 2024 Public Offering. On May 17,
2024 (the “Closing Date”), we consummated a public offering (the “Public Offering”) of an aggregate of (i) 937,034
shares (the “Shares”) of Common Stock, pre-funded warrants to purchase up to 729,633 shares of Common Stock (the “May
2024 Pre-Funded Warrants”), Series A-1 Common Stock purchase warrants (the “Series A-1 Common Warrants”) to purchase
up to 1,666,667 shares of Common Stock (the “Series A-1 Warrant Shares”), and Series A-2 Common Stock purchase warrants (the
“Series A-2 Common Warrants” and together with the Series A-1 Common Warrants, the “Common Warrants”) to purchase
up to 1,666,667 shares of Common Stock (the “Series A-2 Warrant Shares” and together with the Series A-1 Warrant Shares,
the “Common Warrant Shares”). Each Share and associated Series A-1 Common Warrant and Series A-2 Common Warrant to purchase
an aggregate of two (2) Common Warrant Shares was sold at a combined public offering price of $1.35. Each Pre-Funded Warrant and associated
Series A-1 Common Warrant and Series A-2 Common Warrant to purchase an aggregate of two (2) Common Warrant Shares was sold at a combined
public offering price of $1.34999.
The aggregate gross proceeds
from the Public Offering was approximately $2.25 million, before deducting placement agent fees and other offering expenses.
Each May 2024 Pre-Funded
Warrant was immediately exercisable for one (1) share of Common Stock (the “May 2024 Pre-Funded Warrant Shares”) at an exercise
price of $0.00001 per share and exercisable until the May 2024 Pre-Funded Warrants were exercised in full. Each Series A-1 Common Warrant
has an exercise price of $1.35 per share, is immediately exercisable for one (1) share of Common Stock, and expires five (5) years from
its issuance date. Each Series A-2 Common Warrant has an exercise price of $1.35 per share, is immediately exercisable for one (1) share
of Common Stock, and expires eighteen (18) months from its initial issuance date. As of August 9, 2024, all May 2024 Pre-Funded Warrants
were exercised in full and an aggregate of 2,049,683 Common Warrants have been exercised, for aggregate proceeds of approximately $2.8
million, resulting in 1,152,817 Series A-1 Common Warrants and 130,834 Series A-2 Common Warrants remaining outstanding.
The exercise price of
the Common Warrants and number of shares of Common Stock issuable upon exercise will adjust in the event of certain stock dividends and
distributions, stock splits, stock combinations, reclassifications or similar events.
The Common Warrants may
be exercised on a cashless basis if at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for, the issuance of the Common Warrant Shares to the holder.
A holder of the Common
Warrants (together with its affiliates) may not exercise any portion of the Common Warrant or Pre-Funded Warrant to the extent that the
holder would own more than 4.99% (or 9.99%, at the election of the holder) of the outstanding shares of Common Stock immediately after
exercise, except that upon at least 61 days’ prior notice from the holder to the Company, the holder may increase the amount of
beneficial ownership of outstanding shares after exercising the holder’s Common Warrants up to 9.99% of the number of the Company’s
shares of Common Stock outstanding immediately after giving effect to the exercise.
The Shares, the Common
Warrants, the Common Warrant Shares, the May 2024 Pre-Funded Warrants and the May 2024 Pre-Funded Warrant Shares were offered and sold
by us pursuant to the Company’s Registration Statement on Form S-1 (File No. 333-278796), filed by us with the U.S. Securities and
Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”) that became
effective on May 14, 2024.
July
2024 Private Placement. On July 5, 2024, we entered into a Securities Purchase Agreement (the “Purchase Agreement”), with
an institutional investor (the “Investor”) pursuant to which, on July 5, 2024, we issued to the Investor a senior secured
promissory note in the principal amount of $2.5 million (the “Secured Note”) for $2.5 million (the “Subscription Amount”).
This transaction is referred to as the “Financing.” We used the $2.5 million proceeds from the Financing to pay the remaining
$2.5 million owed pursuant to the Settlement Agreement.
The Secured Note
bore interest at the rate of 18% per annum with the principal and accrued interest due in full on December 31, 2025. In order to secure
our obligations under the Secured Note, we entered into a Security Agreement, dated July 5, 2024 (the “Security Agreement”),
granting the Investor a security interest in substantially all of our personal property and assets, including its intellectual property.
The Secured Note contains customary events of default. If an event of default occurred, the
Investor could have accelerated the indebtedness under the Secured Note, in an amount
equal to 110% of the outstanding principal amount and accrued and unpaid interest plus liquidated damages and other amounts,
costs, expenses and/or liquidated damages due under or in respect of the Secured Note, if any.
The Purchase Agreement
provides that it was a condition of the closing of the Financing that not less than five of the current members of the Company’s
Board of Directors resign and that four nominees designated by the Investor be appointed to the Board of Directors. As a result, effective
as of the closing of the Financing, (i) each of Barbara Ruskin, Jerrold Sendrow, Jeffrey Gudin, Thani Jambulingam and Michael F. Dubin
resigned as directors of the Company, and (ii) the Company’s Board of Directors appointed Judy Su as a Class I Director, Jatinder
Dhaliwal and Katharyn Field as Class II directors, and Gary Herman as a Class III director of the Company.
The Purchase Agreement
also provides that we and the Investor will negotiate in good faith in order to agree upon and consummate an equity or debt financing
(a “Subsequent Financing”) of not less than $5.0 million as soon as practicable after the closing date of the Financing and
that (i) the Investor shall have the exclusive right to negotiate the terms of and consummate any Subsequent Financing until September
30, 2024 on terms no less favorable than a third party would offer; and (ii) in any event, the Investor shall have a right of refusal
with respect to any Subsequent Financing that may be consummated by any third-party on or before September 30, 2024. In the event that
a Subsequent Financing of at least $5.0 million is not provided by the Investor (and/or its Affiliate(s) and/or third-party
other designee(s)) on or before September 30, 2024, then the Investor nominated Board members shall resign from our Board of Directors
effective immediately.
The Purchase Agreement
and the Security Agreement contain customary representations, warranties, conditions and indemnification obligations of the parties. Among
other things, the Investor represented to us, that it is an “accredited investor” (as such term is defined in Rule 501(a)
of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”)), and the Company sold the securities
in reliance upon an exemption from registration contained in Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder.
On July 25, 2024, we used approximately $2.5
million of the proceeds received from the exercise of the Common Warrants issued in the Public Offering to repay the Secured Note in
full, including principal and interest.
Positive Results
On July 10, 2024,
we issued a press release announcing positive results for a Swine Model pilot study for Probudur, our long-acting liposomal bupivacaine
formulation. The pharmacokinetics (“PK”) and safety study of Probudur in the Swine Model was designed to determine the PK
profile of Probudur as well as to ascertain any adverse effects on the pigs. Probudur was subcutaneously injected into four juvenile
domestic pigs at a dose of 30 mg/kg and was well-tolerated by all of the pigs and demonstrated a long-term, slow-release profile. Histopathology
was also conducted at the injection site and Probudur was well-tolerated by all pigs in this study.
Corporate Information
We were incorporated
under the laws of the State of Delaware on May 12, 2017. Our principal executive offices are located at 1055 Westlakes Drive, Suite 300,
Berwyn, Pennsylvania 19312. Our telephone number is (610) 727-4597.
Our website address is
www.virpaxpharma.com. The information contained in, or accessible through, our website does not constitute a part of this prospectus.
You should not rely on any such information in making your decision whether to purchase our Common Stock.
Implications of Being an Emerging Growth Company
and a Smaller Reporting Company
We qualify as an “emerging growth company”
as defined under the Securities Act of 1933, as amended (the “Securities Act”). As a result, we are permitted to, and intend
to, rely on exemptions from certain disclosure requirements that are otherwise applicable to public companies. These provisions include,
but are not limited to:
| ● | being
permitted to present only two years of audited financial statements and only two years of related “Management’s Discussion
and Analysis of Financial Condition and Results of Operations”; |
| ● | not
being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended (or the
Sarbanes-Oxley Act); |
| ● | reduced
disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and |
| ● | exemptions
from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute
payments not previously approved. |
In addition, an emerging growth company can take
advantage of an extended transition period for complying with new or revised accounting standards. This provision allows an emerging growth
company to delay the adoption of some accounting standards until those standards would otherwise apply to private companies. We have elected
to avail ourselves of this extended transition period. We will remain an emerging growth company until the earliest to occur of: (i) our
reporting $1.235 billion or more in annual gross revenues; (ii) the end of fiscal year 2026; (iii) our issuance, in a three year period,
of more than $1 billion in non-convertible debt; and (iv) the last day of the fiscal year in which we are deemed to be a large accelerated
filer, which generally means that we have been public for at least 12 months, have filed at least one annual report, and the market value
of our Common Stock that is held by non-affiliates exceeds $700 million as of the last day of our then-most recently completed second
fiscal quarter.
We have elected to take advantage of certain of
the reduced disclosure obligations and may elect to take advantage of other reduced reporting requirements in future filings. As a result,
the information that we provide to our stockholders may be different than the information you might receive from other public reporting
companies in which you hold equity interests.
We also qualify as a “smaller reporting
company,” as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and to the extent we continue to qualify as a “smaller reporting company,” after we cease to qualify as an “emerging
growth company,” certain of the exemptions available to us as an “emerging growth company” may continue to be available
to us as a smaller reporting company, including: (1) not being required to comply with the auditor attestation requirements of Section
404(b) of the Sarbanes-Oxley Act; (2) scaled executive compensation disclosures; and (3) the ability to provide only two years of audited
financial statements, instead of three years.
THE OFFERING
Shares
being offered |
|
Up
to 6,422,018 shares of Common Stock at an assumed public offering price of $1.09 per share (the last reported sale price of our Common
Stock on the Nasdaq Capital Market on August 9, 2024). |
|
|
|
Pre-Funded Warrants offered by us |
|
We are also offering up to 6,422,018 Pre-Funded Warrants to purchase
up to 6,422,018 shares of Common Stock in lieu of shares of Common Stock to any purchaser whose purchase of shares of Common
Stock in this offering would otherwise result in such purchaser, together with its affiliates and certain related parties, beneficially
owning more than 4.99% (or, at the purchaser’s election, 9.99%) of our outstanding Common Stock immediately following the consummation
of this offering. Each Pre-Funded Warrant will be exercisable for one share of Common Stock, will have an exercise price
of $0.00001 per share, will be immediately exercisable, and will not expire prior to exercise. This prospectus also relates to the
offering of the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants. For each Pre-Funded Warrant that
we sell, the number of shares of Common Stock that we are selling will be decreased on a one-for-one basis. |
|
|
|
Number of shares of Common Stock outstanding immediately before this offering |
|
4,887,581 shares. |
|
|
|
Number of shares of Common Stock to be outstanding after this offering (1) |
|
11,309,599
shares (assuming all of the shares of Common Stock we are offering under this prospectus are sold and assuming no sale of Pre-Funded
Warrants, which, if sold, would reduce the number of shares of Common Stock that we are offering on a one-for-one basis). |
|
|
|
Reasonable Best Efforts |
|
We have agreed to offer and sell the Securities offered hereby to the purchasers through the Placement Agent. The Placement Agent is not required to buy or sell any specific number or dollar amount of the Securities offered hereby but will use its reasonable best efforts to solicit offers to purchase the Securities offered by this prospectus. See “Plan of Distribution.” |
|
|
|
Use of proceeds |
|
Assuming
6,422,018 shares of Common Stock are sold in this offering at an assumed public offering price of $1.09 per share of Common Stock,
which represents the closing price of our Common Stock on Nasdaq on August 9, 2024, and assuming no issuance of Pre-Funded Warrants
in this offering, we estimate that our net proceeds from the this offering will be approximately $6.6 million, after deducting Placement
Agent fees, inclusive of financial advisor fees, and estimated offering expenses payable by us. However, this is a best efforts offering
with no minimum number of Securities or amount of proceeds as a condition to closing, and we may not sell all or any of these Securities
offered pursuant to this prospectus; as a result, we may receive significantly less in net proceeds. |
|
|
We
intend to use substantially all of the net proceeds from this offering to fund our ongoing
development activities for commencing clinical trial
for Probudur, as well as for working capital and other general corporate purposes.
In addition, we may use up to $2.0 million for marketing and advertising services to communicate
information about the Company to the financial community including, but not limited to, creating
company profiles, media distribution and building a digital community with respect to the
Company. In addition, if Mr. Mack were to seek indemnification and/or damages from us and
if he were successful in his claim, we may determine to use a portion of the proceeds from
this offering to make such payments. See “Litigation” under “Recent Developments”
in the Prospectus Summary, above and see “Use of Proceeds” below. |
|
|
|
Lock-up Agreements |
|
The
Company and our directors and executive officers have agreed with the Placement Agent, subject to certain exceptions, not to sell,
transfer or dispose of, directly or indirectly, any of our Common Stock or securities convertible into or exercisable or exchange
for Common Stock during the applicable lock-up period. See “Plan of Distribution” for more information. |
|
|
|
Nasdaq Capital Market
symbol |
|
Shares
of our Common Stock are listed on the Nasdaq Capital Market under the symbol “VRPX.” We do not intend to apply for a
listing of the Pre-Funded Warrants on any national securities exchange or other nationally recognized trading system. |
|
|
|
Risk factors |
|
Investing
in our Securities involves a high degree of risk. See “Risk Factors” beginning on page 9 of this prospectus and other
information included, or incorporated by reference, in this prospectus for a discussion of factors you should consider carefully
before deciding to invest in our Securities. |
| (1) | The
number of shares of our Common Stock to be outstanding immediately after this offering is
based on shares of our Common Stock outstanding as of August 9, 2024, which excludes: |
| ● | 220,863
shares of Common Stock issuable upon exercise of stock options outstanding as of August 9,
2024, at a weighted-average exercise price of $22.60 per share; |
| ● | 1,285,494
shares of Common Stock issuable upon exercise of warrants outstanding as of August 9, 2024,
at a weighted-average exercise price of $1.52 per share; and |
| ● | 362,558
shares of our Common Stock that are available for future issuance under our Virpax Pharmaceuticals,
Inc. 2022 Equity Incentive Plan (the “2022 Plan”) or shares that will become
available under our 2022 Plan. |
Unless otherwise indicated,
this prospectus reflects and assumes the following:
| ● | No exercise of outstanding
options or warrants described above; and |
| ● | No
sale of the Pre-Funded Warrants in this offering. |
RISK FACTORS
Investing in our Securities involves a
high degree of risk. You should consider carefully the risks described below, together with all of the other information included or
incorporated by reference in this prospectus, including the risks and uncertainties discussed under “Risk Factors” in the
Annual Report and the Quarterly Report on Form 10-Q for the three and six months ended June 30, 2024, each of which has been filed with
the SEC and is incorporated by reference in this prospectus, as well as any updates thereto contained in subsequent filings with the
SEC or any free writing prospectus, before deciding whether to purchase our Securities in this offering. All of these risk factors are
incorporated herein in their entirety. The risks described below and incorporated by reference are material risks currently known, expected
or reasonably foreseeable by us. However, the risks described below and incorporated by reference are not the only ones that we face.
Additional risks not presently known to us or that we currently deem immaterial may also affect our business, operating results, prospects
or financial condition. If any of these risks actually materialize, our business, prospects, financial condition, and results of operations
could be seriously harmed. This could cause the trading price of our Common Stock to decline, resulting in a loss of all or part of your
investment.
This prospectus also contains forward-looking
statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in the forward-looking
statements as a result of a number of factors, including the risks described below or incorporated by reference. See the section titled
“Cautionary Note Regarding Forward-Looking Statements.”
Risks Related to Our Financial Position
We require substantial additional capital
to fund our operations, and if we fail to obtain necessary financing, we will not be able to complete the development and commercialization
of our drugs.
Our operations have
consumed substantial amounts of cash since inception. As of June 30, 2024, our cash position totaled approximately $1.9 million and as
of August 6, 2024, our cash position totaled approximately $0.9 million. Our current cash position and our historical burn rate of approximately
$1.0 million per month is not sufficient to enable us to fund our operations through the third quarter of 2024. Even if we are able to
raise the maximum offering amount being offered in this offering, we will require additional capital again after this offering in the
near future and we will be prohibited from using our equity to raise capital for thirty (30) days after the closing of this offering.
There can be no assurance that we will be able to raise capital when needed. Our failure to raise such additional capital or sufficient
capital in this offering could result in us being forced to liquidate assets or initiate bankruptcy proceedings.
Recent litigation has
also negatively impacted our cash position. As a result of the $6.0 million payment that has been made to the Plaintiffs pursuant to
the Settlement Agreement, our cash position has been significantly decreased. Moreover, the payment of the royalties to the Plaintiffs
pursuant to the terms of the Settlement Agreement, will significantly impact our future revenue and may make it more difficult for us
to engage in collaborations, licenses or the acquisition of certain product candidates, and may result in us ceasing to develop certain
product candidates or all of our product candidates if we determine that it will not be financially profitable to do so. In addition,
litigation-related indemnification and/or contribution payments, if any, that we make to our former Chief Executive Officer, and which
may be significant, will further reduce our cash position.
We will need to
spend substantial amounts to advance the clinical development of and launch and commercialize our product candidates.
The amount we will
spend for our clinical development of and launch and commercialization of our product candidates is difficult to estimate. For example,
we estimate that we will require at least a total of approximately $7.5 million for the completion of planned development for commencing
a clinical trial for Probudur and other expenditures that we will need to incur in order to develop our other product candidates, our
ongoing operations, and potential cash separation payments to our former Chief Executive Officer. Our estimate of our clinical trial
timing may change and we may need substantially more funds to commence our planned clinical trial for Probudur. Even if we sell the maximum
number of Securities in this offering, we may need to raise additional capital in order to commence our clinical trial. If we are unable
to raise capital when needed or on attractive terms, we could be forced to delay, reduce or eliminate our research and development programs
or any future commercialization efforts. In addition, our strategy for AnQlar and Epoladerm is to license out or partner these assets
as we continue to focus our efforts on our prescription drug pipeline. If we are unsuccessful in our partnering activities and/or financing
activities, we may be unable to develop AnQlar and Epoladerm.
Risks Related to this Offering and Our
Common Stock
We will need additional
future financing which may not be available on acceptable terms, if at all and will result in the issuance of additional securities being
issued which will cause investors to experience further dilution.
We expect to require
substantial additional capital until our operations generate sufficient revenue to cover our expenses. We have not generated any revenue
since inception and may never generate revenues unless any of our products are approved by the FDA and other regulatory authorities,
which may never happen. Accordingly, we will need to obtain substantial additional funding in connection with our continuing operations.
There are currently no other commitments by any person for future financing. Our securities may be offered to other investors in other
offerings at a price lower than the price per share offered in this offering, or upon terms which may be deemed more favorable than those
offered to investors in this offering. In addition, the issuance of securities in any future financing may dilute an investor’s
equity ownership and have the effect of depressing the market price for our securities. Moreover, we may issue securities convertible
or exchangeable into Common Stock, in future transactions. The issuance of any such derivative securities, which is at the discretion
of our Board of Directors, may further dilute the equity ownership of our stockholders.
Our management
has broad discretion in using the net proceeds from this offering.
Our management will
have broad discretion with respect to the use of proceeds from this offering. See “Use of Proceeds.” We cannot, with any
assurance, be more specific at this time. We will have broad discretion in the timing of the expenditures and application of proceeds
received in this offering. If we fail to apply the net proceeds effectively, we may not be successful in bringing our proposed products
to market. You will not have the opportunity to evaluate all of the economic, financial or other information upon which we may base our
decisions to use the net proceeds from this offering. We may use the proceeds of this offering in ways that do not increase our operating
results or enhance the value of our Common Stock.
Our failure to
meet the continued listing requirements of the Nasdaq Capital Market could result in a delisting of our Common Stock.
Our shares of Common
Stock are listed for trading on the Nasdaq Capital Market under the symbol “VRPX.” If we fail to satisfy the continued listing
requirements of the Nasdaq Capital Market, such as the corporate governance requirements, the Minimum Stockholders’ Equity Rule
or the Minimum Bid Price Rule, the Nasdaq Capital Market may take steps to delist our Common Stock.
On April 2, 2024,
we received a notification letter from the Listing Qualifications Staff of the Nasdaq notifying us that our stockholders’ equity
as reported in our Annual Report, did not meet the minimum stockholders’ equity requirement for continued listing on the Nasdaq
Capital Market. Nasdaq Listing Rule 5550(b)(1) requires companies listed on the Nasdaq Capital Market to maintain stockholders’
equity of at least $2,500,000 (the “Minimum Stockholders’ Equity Rule”). In the Annual Report, we reported stockholders’
equity of $1,934,321, which is below the minimum stockholders’ equity required for continued listing pursuant to Nasdaq Listing
Rule 5550(b)(1). Additionally, as of the date of this prospectus, we do not meet the alternative Nasdaq continued listing standards under
Nasdaq Listing Rules. In our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2024, we reported stockholders’
deficit of $2,794,498.
Pursuant to Nasdaq’s Listing Rules,
we were given 45 calendar days (or until May 17, 2024), to submit a plan to evidence compliance with the Minimum Stockholders’
Equity Rule (a “Compliance Plan”). We submitted a Compliance Plan within the required time period, which included raising
funds from equity offerings. On July 29, 2024, we received notice from the Listing Qualifications Staff (the “Staff”) of
The Nasdaq Stock Market LLC that we were granted an extension through September 30, 2024 to regain compliance with Nasdaq Listing Rule
5550(b)(1). There can be no assurance that we will be able to comply with the Minimum Stockholders’ Equity Rule, even if the
maximum offering amount is raised in this offering, due to our cash burn rate, operating expenses and payment obligations. In which case,
we will be required to raise additional funds after this offering in order to be compliant.
In the event we fail
to evidence compliance with the Minimum Stockholders’ Equity Rule within the allotted time period, we will have the right to a
hearing before Nasdaq’s Hearing Panel (the “Panel”). The hearing request would stay any suspension or delisting action
pending the conclusion of the hearing process and the expiration of any additional extension period granted by the Panel following the
hearing.
In addition, on June
28, 2024, we received written notice from the Listing Qualifications Department of the Nasdaq notifying us that for the preceding 30
consecutive business days (May 15, 2024 through June 27, 2024), the Common Stock did not maintain a minimum closing bid price of $1.00
(“Minimum Bid Price Rule”) per share as required by Nasdaq Listing Rule 5550(a)(2).
On July
22, 2024, the Company received a notice from the Listing Qualifications Department of Nasdaq notifying the Company that the staff has
determined that for 10 consecutive business days, from July 8, 2024 to July 19, 2024, the closing bid price of the Company’s Common
Stock had been at $1.00 per share or greater. Accordingly, the staff has determined that the Company has regained compliance with Listing
Rule 5550(a)(2). There can be no assurance that we will be able to continue to comply with the Minimum Bid Price.
Any perception that
we may not regain compliance or a delisting of our Common Stock by Nasdaq could adversely affect our ability to attract new investors,
decrease the liquidity of the outstanding shares of our Common Stock, reduce the price at which such shares trade and increase the transaction
costs inherent in trading such shares with overall negative effects for our stockholder. In addition, delisting of our Common Stock from
Nasdaq could deter broker-dealers from making a market in or otherwise seeking or generating interest in our Common Stock and might deter
certain institutions and persons from investing in our Common Stock.
The National Securities
Markets Improvement Act of 1996, which is a federal statute, prevents or preempts the states from regulating the sale of certain securities,
which are referred to as “covered securities.” Because our Common Stock is listed on the Nasdaq Capital Market, our Common
Stock is covered securities. Although the states are preempted from regulating the sale of covered securities, the federal statute does
allow the states to investigate companies if there is a suspicion of fraud, and, if there is a finding of fraudulent activity, then the
states can regulate or bar the sale of covered securities in a particular case. Further, if we were to be delisted from the Nasdaq Capital
Market, our Common Stock would cease to be recognized as covered securities and we would be subject to regulation in each state in which
we offer our securities.
This is a reasonable
best efforts offering, with no minimum amount of Securities required to be sold, and we may sell fewer than all of the Securities offered
hereby.
The Placement Agent
has agreed to use its reasonable best efforts to solicit offers to purchase the Securities in this offering. The Placement Agent has
no obligation to buy any of the Securities from us or to arrange for the purchase or sale of any specific number or dollar amount of
the Securities. There is no required minimum number of Securities that must be sold as a condition to completion of this offering, and
there can be no assurance that the offering contemplated hereby will ultimately be consummated. Even if we sell Securities offered hereby,
because there is no minimum offering amount required as a condition to closing of this offering, the actual offering amount is not presently
determinable and may be substantially less than the maximum amount set forth on the cover page of this prospectus. We may sell fewer
than all of the Securities offered hereby, which may significantly reduce the amount of proceeds received by us. Thus, we may not raise
the amount of capital we believe is required for our operations in the short-term and may need to raise additional funds, which may not
be available or available on terms acceptable to us.
Because there
is no minimum required for the offering to close, investors in this offering will not receive a refund in the event that we do not sell
an amount of securities sufficient to pursue the business goals outlined in this prospectus.
We have not specified
a minimum offering amount nor have or will we establish an escrow account in connection with this offering. Because there is no escrow
account and no minimum offering amount, investors could be in a position where they have invested in our company, but we are unable to
fulfill our objectives due to a lack of interest in this offering. Further, because there is no escrow account in operation and no minimum
investment amount, any proceeds from the sale of Securities offered by us will be available for our immediate use, despite uncertainty
about whether we would be able to use such funds to effectively implement our business plan. Investor funds will not be returned under
any circumstances whether during or after the offering.
If you purchase
shares of our Common Stock sold in this offering, you will experience immediate and substantial dilution in the net tangible book value
of your shares. In addition, we may issue additional equity or convertible debt securities in the future, which may result in additional
dilution to investors.
The price per share
of our Common Stock being offered may be higher than the net tangible book value per share of our outstanding Common Stock prior to this
offering, which may result in new investors in this offering incurring immediate dilution. To the extent outstanding stock options are
exercised, there will be further dilution to new investors. For a more detailed discussion of the foregoing, see the section entitled
“Dilution” below. To the extent additional stock options or warrants are issued, there will be further dilution to new investors.
This offering
may cause the trading price of our Common Stock to decrease.
The price per share,
together with the number of shares of Common Stock we issue if this offering is completed, may result in an immediate decrease in the
market price of our Common Stock. This decrease may continue after the completion of this offering.
Because we will
not declare cash dividends on our Common Stock in the foreseeable future, stockholders must rely on appreciation of the value of our
Common Stock for any return on their investment.
We have never declared
or paid cash dividends on our Common Stock. We currently anticipate that we will retain future earnings for the development, operation
and expansion of our business and will not declare or pay any cash dividends in the foreseeable future. As a result, only appreciation
of the price of our Common Stock, if any, will provide a return to investors in this offering.
There is no public market for the Pre-Funded Warrants being
offered in this offering.
There is no established
public trading market for the Pre-Funded Warrants being offered in this offering, and we do not expect a market to develop. In addition,
we do not intend to apply to list the Pre-Funded Warrants on Nasdaq or any national securities exchange or other nationally recognized
trading system. Without an active market, the liquidity of the Pre-Funded Warrants will be limited.
Holders of the
Pre-Funded Warrants offered hereby will have no rights as Common Stockholders with respect to the shares our Common Stock underlying
the Pre-Funded Warrants until such holders exercise their Pre-Funded Warrants and acquire our Common Stock, except as otherwise provided
in the Pre-Funded Warrants.
Until holders of the
Pre-Funded Warrants acquire shares of our Common Stock upon exercise thereof, such holders will have no rights with respect to the shares
of our Common Stock underlying such Pre-Funded Warrants, except to the extent that holders of such Pre-Funded Warrants will have certain
rights to participate in distributions or dividends paid on our Common Stock as set forth in the Pre-Funded Warrants. Upon exercise of
the Pre-Funded Warrants, the holders will be entitled to exercise the rights of a Common Stockholder only as to matters for which the
record date occurs after the exercise date.
Purchasers who
purchase our Securities in this offering pursuant to a securities purchase agreement may have rights not available to purchasers that
purchase without the benefit of a securities purchase agreement.
In addition to rights
and remedies available to all purchasers in this offering under federal securities and state law, the purchasers that enter into a securities
purchase agreement will also be able to bring claims of breach of contract against us. The ability to pursue a claim for breach of contract
provides those investors with the means to enforce the covenants uniquely available to them under the securities purchase agreement,
including: a covenant to not enter into any equity financings for thirty (30) days from closing of the offering, subject to certain exceptions.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus may contain
“forward-looking statements” within the meaning of the federal securities laws. Our forward-looking statements include, but
are not limited to, statements about us and our industry, as well as statements regarding our or our management team’s expectations,
hopes, beliefs, intentions or strategies regarding the future. Additionally, any statements that refer to projections, forecasts or other
characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. We intend
the forward-looking statements to be covered by the safe harbor provisions of the federal securities laws. Words such as “may,”
“should,” “could,” “would,” “predicts,” “potential,” “continue,”
“expects,” “anticipates,” “future,” “intends,” “plans,” “believes,”
“estimates,” and similar expressions, as well as statements in future tense, may identify forward-looking statements, but
the absence of these words does not mean that a statement is not forward-looking.
Forward-looking statements should not be read
as a guarantee of future performance or results and may not be accurate indications of when such performance or results will be achieved.
Forward-looking statements are based on information we have when those statements are made or management’s good faith belief as
of that time with respect to future events, and are subject to significant risks and uncertainties that could cause actual performance
or results to differ materially from those expressed in or suggested by the forward-looking statements. Important factors that could
cause such differences include, but are not limited to:
| ● | Our
expected use of proceeds from this offering; |
| ● | Our
limited operating history makes it difficult for us to evaluate our future business prospects; |
| ● | Our
ability to continue as a going concern; |
| ● | The
expectation that we will incur significant operating losses for the foreseeable future and will need significant additional capital; |
| ● | Our
current and future capital requirements to support our development and commercialization efforts for our product candidates and our ability
to satisfy our capital needs; |
| ● | Risks
relating to ownership of our Common Stock, including high volatility and dilution; |
| ● | Our
lack of operating history; |
| ● | The
outcome of certain current litigation in which we and our former Chief Executive Officer are named as defendants; |
| ● | Our
ability to raise additional capital; |
| ● | Our
dependence on our product candidates, which are still in preclinical or early stages of clinical development; |
| ● | Our,
or that of our third-party manufacturers, ability to manufacture current good manufacturing practice (“cGMP”) quantities
of our product candidates as required for preclinical and clinical trials and, subsequently, our ability to manufacture commercial
quantities of our product candidates; |
| ● | Our
ability to complete required clinical trials for our product candidates and obtain approval from the US Food and Drug Administration
(“FDA”) or other regulatory agencies in different jurisdictions; |
| ● | Our
lack of a sales and marketing organization and our ability to commercialize our product candidates if we obtain regulatory approval; |
| ● | Our
dependence on third parties to manufacture our product candidates; |
| ● | Our
reliance on third-party contract research organizations (“CROs”) to conduct our clinical trials; |
| ● | Our
ability to maintain or protect the validity of our intellectual property; |
| ● | Our
ability to internally develop new inventions and intellectual property; |
| ● | Interpretations
of current laws and the passages of future laws; |
| ● | Acceptance
of our business model by investors; |
| ● | The
accuracy of our estimates regarding expenses and capital requirements; |
| ● | Our
ability to maintain our Nasdaq listing; and |
| ● | Our
ability to adequately support organizational and business growth. |
The risks and uncertainties
included here are not exhaustive or necessarily in order of importance. Other sections of this prospectus, including “Risk Factors”
beginning on page 9, our Annual Report, as updated with the Risk Factors set forth in our Quarterly Report for the three and six
months ended June 30, 2024, and other reports that we file with the SEC include additional factors that could affect our businesses and
financial performance. Moreover, we operate in a rapidly changing and competitive environment. New risk factors emerge from time to time,
and it is not possible for management to predict all such risk factors.
Further, it is not possible
to assess the effect of all risk factors on our businesses or the extent to which any factor, or combination of factors, may cause actual
results to differ materially from those contained in any forward-looking statements. Given these risks and uncertainties, investors should
not place undue reliance on forward-looking statements as a prediction of actual results. In addition, we disclaim any obligation to
correct or update any forward-looking statements to reflect events or circumstances that occur after the date of this prospectus.
USE OF PROCEEDS
We estimate that
we will receive net proceeds from this offering of approximately $6.6 million (assuming the sale of the maximum number of Securities
offered hereby), based upon an assumed public offering price of $1.09 per share (which is the last reported sale price of our Common
Stock on Nasdaq on August 9, 2024), after deducting the estimated Placement Agent fees, inclusive of financial advisor fees, and estimated
offering expenses payable by us and assuming no issuance of any Pre-Funded Warrants. However, because this is a reasonable best efforts
offering with no minimum number of Securities or amount of proceeds as a condition to closing, the actual offering amount, Placement
Agent’s fees, and net proceeds to us are not presently determinable and may be substantially less than the maximum amounts set
forth on the cover page of this prospectus, and we may not sell all or any of the Securities we are offering. As a result, we may
receive significantly less in net proceeds. Based on the assumed offering price set forth above, we estimate that our net proceeds from
the sale of 75%, 50%, and 25% of the Securities offered in this offering would be approximately $4.9 million, $3.2 million, and $1.5
million, respectively, after deducting the estimated Placement Agent fees, inclusive of financial advisor fees, and estimated offering
expenses payable by us, and assuming no issuance of any Pre-Funded Warrants.
We intend to use
the net proceeds from this offering to fund our ongoing development activities for commencing clinical
trial for Probudur, as well as for working capital and other general corporate purposes. In addition, we may use up to $2.0 million
for marketing and advertising services to communicate information about the Company to the financial community including, but not limited
to, creating company profiles, media distribution and building a digital community with respect to the Company. Pending our use of the
net proceeds from this offering, we intend to invest the net proceeds in a variety of capital preservation investments, including short-term,
investment-grade, interest-bearing instruments and U.S. government securities.
This expected use of
net proceeds from this offering represents our intentions based upon our current plans and business conditions, which could change in
the future as our plans, business conditions and cash position evolve. Our management will have significant flexibility and discretion
in the timing and application of the net proceeds of the offering. In addition, if our former Chief Executive Officer, Mr. Mack, were
to seek indemnification and/or damages from us and if he were successful in his claim, we may determine to use a portion of the proceeds
from this offering to make such payments. See “Litigation” under “Recent Developments” in the Prospectus Summary,
above. Unforeseen events or changed business conditions may result in application of the proceeds of the offering in a manner other than
as described in this prospectus. Our stockholders may not agree with the manner in which our management chooses to allocate and spend
the net proceeds. See “Risk Factors.”
CAPITALIZATION
The following table
sets forth our cash and our capitalization as of June 30, 2024:
|
● |
on a pro forma basis, giving effect to (i) the
issuance of the Secured Note in the principal amount of $2.5 million to the Investor and the receipt of the $2.5 million cash proceeds
from such issuance and payment of the remaining $2.5 million owed to the Plaintiffs pursuant to the Settlement Agreement; (ii) the
issuance of 2,049,683 shares of Common Stock upon exercise of Common Warrants and the receipt of approximately $2.8 million in proceeds
from such exercises; (iii) the payment of approximately $2.5 million to repay the Secured Note in full, which includes principal
and interest; and |
|
● |
on a pro forma as adjusted basis, giving effect
to the pro forma adjustments set forth above and the sale of 6,422,018 shares of Common Stock based on an assumed public offering
price of $1.09 per share (the last reported sale price of our Common Stock on the Nasdaq Capital Market on August 9, 2024), after
deducting estimated Placement Agent fees, inclusive of financial advisor fees, and estimated offering expenses payable by us and
assuming no sale of Pre-Funded Warrants. |
The pro forma as adjusted information set
forth in the table below is illustrative only and will be adjusted based on the actual public offering price and other terms of this
offering as determined at pricing. You should read the information in this table together with our condensed consolidated financial statements
and related notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the
Company’s Quarterly Report on Form 10-Q for the three and six months ended June 30, 2024, incorporated by reference in this prospectus.
| |
As of June 30, 2024 | | |
Pro
Forma | | |
Pro Forma As Adjusted | |
| |
Actual | | |
| | |
| |
Cash: | |
$ | 1,870,729 | | |
$ | 2,112,801 | (1) | |
$ | 8,715,201 | |
Stockholders’ (deficit) equity: | |
| | | |
| | | |
| | |
Common stock, $0.00001 par value; 100,000,000 shares authorized,
and 2,837,898 shares issued and outstanding, actual; 4,887,581 shares issued and outstanding pro forma and 11,309,599 shares issued
and outstanding pro forma as adjusted | |
$ | 28 | | |
$ | 49 | | |
$ | 113 | |
Additional paid-in capital | |
| 63,420,289 | | |
| 66,187,340 | | |
| 72,789,676 | |
Accumulated deficit | |
| (66,214,815 | ) | |
| (66,239,815 | ) | |
| (66,239,815 | ) |
Total stockholders’ (deficit)
equity | |
$ | (2,794,815 | ) | |
$ | (52,426 | ) | |
$ | 6,549,974 | |
Total capitalization | |
$ | (2,794,815 | ) | |
$ | (52,426 | ) | |
$ | 6,549,974 | |
| (1) | Cash
does not take into account our net cash burn subsequent to June 30, 2024. Our cash position
as of August 6, 2024 was $0.9 million. |
Each $0.10 increase
or decrease in the assumed public offering price of $1.09 per share (the last reported sale price of our Common Stock on the Nasdaq Capital
Market on August 9, 2024), would increase or decrease the as adjusted amount of each of cash, additional paid-in capital, total
stockholders’ equity and total capitalization by approximately $0.6 million, assuming that the number of shares offered by us,
as set forth on the cover page of this prospectus, remains the same and after deducting Placement Agent fees, inclusive of financial
advisor fees, and estimated offering expenses payable by us and assuming no sale of Pre-Funded Warrants.
Each increase or
decrease of 500,000 shares of Common Stock in the number of shares offered by us, as set forth on the cover page of this prospectus,
would increase or decrease the as adjusted amount of each of cash and cash equivalents, additional paid-in capital, total stockholders’
equity and total capitalization by approximately $0.5 million assuming no change in the assumed public offering price per share, as set
forth on the cover page of this prospectus, and after deducting Placement Agent fees, inclusive of financial advisor fees, and estimated
offering expenses payable by us and assuming no sale of Pre-Funded Warrants.
The table above is
based on 2,837,898 shares of our Common Stock outstanding as of June 30, 2024 and does not include as of such date:
|
● |
226,221 shares of Common Stock issuable upon exercise
of stock options outstanding as of June 30, 2024, at a weighted-average exercise price of $22.49 per share; |
|
● |
89,401 shares of our Common Stock that are available
for future issuance under our 2022 Plan or shares that will become available under our 2022 Plan; and |
|
● |
3,335,177 shares of Common Stock issuable upon
exercise of warrants outstanding as of June 30, 2024, at a weighted-average exercise price of $1.41 per share. |
Unless otherwise indicated,
this prospectus reflects and assumes the following:
|
● |
No exercise of outstanding options or warrants described above; and |
|
● |
No sale of the Pre-Funded Warrants in this offering. |
DILUTION
If you invest in our
Common Stock in this offering, your ownership interest will be diluted immediately to the extent of the difference between the public
offering price per share of our Common Stock and the as adjusted net tangible book value per share of our Common Stock immediately after
this offering.
Dilution results from
the fact that the public offering price per share is substantially in excess of the book value per share attributable to the existing
stockholders for the presently outstanding shares of Common Stock. We calculate net tangible book value per share by dividing the net
tangible book value (total tangible assets less total liabilities) by the number of outstanding shares of Common Stock.
Our historical net
tangible book value deficit as of June 30, 2024 was approximately $(2.8) million, or $(0.98) per share. Our historical net tangible book
value deficit is the amount of our total tangible assets less our total liabilities. Historical net tangible book value deficit per share
represents our historical net tangible book value deficit divided by the 2,837,898 shares of our Common Stock outstanding as of June
30, 2024.
Our pro forma net
tangible book value deficit as of June 30, 2024 was approximately $(0.1) million, or $(0.01) per share. Pro forma net tangible book value
represents the amount of our tangible book value as adjusted to take into account (i) the issuance of a note in the principal amount
of $2.5 million to the Investor and the receipt of the $2.5 million cash proceeds from such issuance and payment of the remaining $2.5
million owed to the Plaintiffs pursuant to the Settlement Agreement (ii) the issuance of 2,049,683 shares of Common Stock upon exercise
of Common Warrants and the receipt of approximately $2.8 million in proceeds from such exercises and (iii) the payment of approximately
$2.5 million to repay the Secured Note in full, which includes principal and interest.
After giving effect to the pro forma adjustments
set forth above and the receipt of the estimated maximum net proceeds from our sale of Securities in this offering, based on an assumed
public offering price of $1.09 per share (the last reported sale price of our Common Stock on the Nasdaq Capital Market on August
9, 2024), after deducting estimated Placement Agent fees, inclusive of financial advisor fees, and estimated offering expenses payable
by us and assuming no sale of Pre-Funded Warrants, our pro forma as adjusted net tangible book value at June 30, 2024 would have been
approximately $6.5 million, or $0.58 per share. This represents an immediate increase in net tangible book value per share of $0.59 to
existing stockholders and an immediate dilution per share of $0.51 to you. The following table illustrates this dilution on a per
share basis to new investors:
Assumed public offering price
per share |
|
|
|
|
|
$ |
1.09 |
|
Pro Forma net tangible book value per share as of
June 30, 2024 |
|
$ |
(0.01 |
) |
|
|
|
|
Increase in pro forma net tangible book value per
share attributable to this offering |
|
$ |
0.59 |
|
|
|
|
|
Pro Forma as adjusted net tangible book value per
share after this offering |
|
|
|
|
|
$ |
0.58 |
|
Dilution per share to new investors purchasing Common
Stock in this offering |
|
|
|
|
|
$ |
0.51 |
|
The dilution information
discussed above is illustrative only and will change based on the actual public offering price and other terms of this offering determined
at pricing.
Each $0.10 increase (decrease) in the assumed
public offering price of $1.09 per share of Common Stock (the last reported sale price of our Common Stock on the Nasdaq Capital Market
on August 9, 2024) would increase (decrease) our pro forma as adjusted net tangible book value per share after this offering by approximately
$0.6 million or $0.06 per share and would change dilution per share to new investors purchasing Securities in this offering by approximately
$0.04, assuming that the number of Securities offered by us, as set forth on the cover page of this prospectus, remains the same and
after deducting the estimated Placement Agent fees, inclusive of financial advisor fees, and estimated offering expenses payable by us
and assuming no sale of Pre-Funded Warrants.
Each increase (decrease)
in the number of shares of Common Stock offered by 500,000 shares of Common Stock would increase (decrease) our pro forma as adjusted
net tangible book value as of June 30, 2024 after this offering by approximately $0.5 million or $0.02 per share, and would change the
dilution to investors in this offering by approximately $0.02 per share, assuming that the assumed offering price per share, as set forth
on the cover page of this prospectus, remains the same, after deducting Placement Agent fees, inclusive of financial advisor fees, and
estimated offering expenses payable by us and assuming no sale of Pre-Funded Warrants.
Each increase in the number of shares of Common
Stock offered by 1,000,000 shares of Common Stock would increase our pro forma as adjusted net tangible book value as of June 30, 2024
after this offering by approximately $1.1 million, or $0.04 per share, and would change the dilution to investors in this offering by
approximately $0.04 per share, assuming that the assumed offering price per share, as set forth on the cover page of this prospectus,
remains the same, after deducting Placement Agent fees, inclusive of financial advisor fees, and estimated offering expenses payable
by us and assuming no sale of Pre-Funded Warrants.
The table and discussion above do not include:
| ● | 226,221
shares of Common Stock issuable upon exercise of stock options outstanding as of June 30,
2024, at a weighted-average exercise price of $22.49 per share; |
|
● |
89,401 shares of our Common Stock that are available
for future issuance under our 2022 Plan or shares that will become available under our 2022 Plan; and |
|
● |
3,335,177 shares of Common Stock issuable upon
exercise of warrants outstanding as of June 30, 2024, at a weighted-average exercise price of $1.41 per share. |
To the extent any outstanding
options or other equity awards are exercised or become vested or any additional options or other equity awards are granted and exercised
or become vested or other issuances of our Common Stock are made, there may be further economic dilution to new investors.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following table
sets forth information with respect to the beneficial ownership of our Common Stock, as of August 9, 2024:
| ● | each
person or group of affiliated persons known by us to beneficially own more than 5% of our Common Stock; |
| ● | each
of our executive officers; |
| ● | each
of our directors; and |
| ● | all
of our current executive officers and directors as a group. |
The number of shares
beneficially owned by each stockholder is determined under rules issued by the SEC. Under these rules, beneficial ownership includes
any shares as to which the individual or entity has sole or shared voting power or investment power. We have based our calculation of
the percentage of beneficial ownership of our Common Stock before this offering on 4,887,581 shares of Common Stock outstanding as of
August 9, 2024. We have based our calculation of the percentage of beneficial ownership of our Common Stock after this offering on 11,309,599
shares of our Common Stock, which gives effect to the issuance of 6,422,018 shares of Common Stock in this offering. In computing the
number of shares beneficially owned by an individual or entity and the percentage ownership of that person, shares of Common Stock subject
to the exercise of options, warrants or other rights held by such person that are currently exercisable or will become exercisable within
60 days of August 9, 2024 are counted as outstanding. Unless noted otherwise, the address of all listed stockholders is 1055 Westlakes
Drive, Suite 300, Berwyn, Pennsylvania 19312. Each stockholder listed has sole voting and investment power with respect to the shares
beneficially owned by the stockholder unless noted otherwise, subject to community property laws where applicable.
| |
Shares Beneficially
Owned
Prior to this Offering | | |
Shares Beneficially
Owned
After this Offering | |
Name of Beneficial Owner | |
Shares of
Common
Stock | | |
Percentage
of Common Stock | | |
Shares of
Common
Stock | | |
Percentage of
Common
Stock | |
Named Executive Officers and Directors | |
| | |
| | |
| | |
| |
Gerald
Bruce(1) | |
| 20,920 | | |
| * | | |
| 20,920 | | |
| * | |
Vinay
Shah(2) | |
| 3,437 | | |
| * | | |
| 3,437 | | |
| * | |
Anthony
Mack(3)(4) | |
| 298,298 | | |
| 6.1 | % | |
| 298,298 | | |
| 2.6 | % |
Sheila
Mathias, PhD, JD, MBA(5) | |
| 10,278 | | |
| * | | |
| 10,278 | | |
| * | |
Eric
Floyd, PhD(6) | |
| 11,866 | | |
| * | | |
| 11,866 | | |
| * | |
Vanila
Singh, MD, MACM (7) | |
| 5,549 | | |
| * | | |
| 5,549 | | |
| * | |
Christopher
Chipman (8) | |
| — | | |
| — | | |
| — | | |
| — | |
Jatinder Dhaliwal | |
| — | | |
| — | | |
| — | | |
| — | |
Katharyn Field | |
| — | | |
| — | | |
| — | | |
| — | |
Gary Herman | |
| — | | |
| — | | |
| — | | |
| — | |
Judy Su | |
| — | | |
| — | | |
| — | | |
| — | |
All current executive officers and directors as a group
(9 persons) | |
| 52,050 | | |
| 1.1 | % | |
| 52,050 | | |
| * | |
5% or Greater Stockholders | |
| | | |
| | | |
| | | |
| | |
Virpax
Pharmaceuticals, LLC(3) | |
| 273,043 | | |
| 5.6 | % | |
| 273,043 | | |
| 2.4 | % |
| (1) | Includes 404 shares
of Common Stock and 20,516 shares of Common Stock issuable upon exercise of stock options
that are exercisable within 60 days of August 9, 2024. |
(2) |
Includes 3,437 shares
of Common Stock issuable upon exercise of stock options that are exercisable within 60 days of August 9, 2024. |
|
|
(3) |
Anthony Mack, our Former Chief Executive Officer, and Jeffrey Gudin, our former director, are the members of Virpax Pharmaceuticals, LLC. Due to Mr. Mack’s ownership of 88.8888% of the outstanding member units of Virpax Pharmaceuticals, LLC, he may be deemed to have sole voting and dispositive control over the shares of our Common Stock held by Virpax Pharmaceuticals, LLC. As a result, Mr. Mack may be deemed to beneficially own the shares of our Common Stock held by Virpax Pharmaceuticals, LLC. Mr. Mack resigned as our Chief Executive Officer and Chair of the Board, effective November 17, 2023. |
|
|
(4) |
Includes 25,255 shares of Common Stock held by Mr. Mack and his spouse and 273,043 shares of Common Stock held by Virpax Pharmaceuticals, LLC. |
|
|
(5) |
Includes 10,278 shares
of Common Stock issuable upon exercise of stock options that are exercisable within 60 days of August 9, 2024. |
|
|
(6) |
Includes 800 shares of Common Stock, and 11,066 shares of Common Stock issuable upon exercise
of stock options exercisable within 60 days of August 9, 2024. |
|
|
(7) |
Includes 5,549 shares of Common Stock issuable upon exercise of stock options that are exercisable
within 60 days of August 9, 2024. |
|
|
(8) |
Mr. Chipman resigned as our Chief Financial Officer, effective June 30, 2023. |
DESCRIPTION OF OUR CAPITAL STOCK
The following description of our capital stock
and the provisions of our certificate of incorporation and our bylaws are summaries and are qualified by reference to our certificate
of incorporation and bylaws. We have filed copies of these documents with the SEC as exhibits to our registration statement of which
this prospectus forms a part.
General
Our authorized capital stock consists of 100,000,000
shares of Common Stock, par value $0.00001 per share, and 10,000,000 shares of Preferred Stock, par value $0.00001 per share.
As of August 9, 2024, 4,887,581 shares of
our Common Stock are issued and outstanding, and no shares of our preferred stock are issued and outstanding.
Common Stock
Voting. The holders of Common Stock are
entitled to one vote per share on all matters to be voted upon by the stockholders, except on matters relating solely to the terms of
preferred stock.
Dividends. Subject to preferences
that may be applicable to any outstanding preferred stock, the holders of Common Stock are entitled to receive ratably such dividends,
if any, as may be declared from time to time by the board of directors out of funds legally available therefor.
Liquidation. In the event of our
liquidation, dissolution or winding up, the holders of Common Stock are entitled to share ratably in all assets remaining after payment
of liabilities, subject to prior distribution rights of preferred stock, if any, then outstanding.
Other Rights and Preferences. The
holders of our Common Stock have no preemptive, subscription, cumulative voting or conversion rights and there are no redemption or sinking
fund provisions applicable to our Common Stock.
Preferred Stock
Our board of directors is authorized to issue
up to 10,000,000 shares of preferred stock in one or more series without stockholder approval. Our board of directors may determine the
rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges
and liquidation preferences, of each series of preferred stock.
The issuance of preferred stock, while providing
desirable flexibility in connection with possible acquisitions and other corporate purposes, could make it more difficult for a third
party to acquire, or could discourage a third party from acquiring, a majority of our outstanding voting stock. The rights of holders
of our Common Stock described above, will be subject to, and may be adversely affected by, the rights of any preferred stock that we
may designate and issue in the future.
Nasdaq Listing
Our Common Stock is listed on the Nasdaq
Capital Market under the symbol “VRPX”.
Transfer Agent and Registrar
The transfer agent and
registrar for our Common Stock is VStock Transfer, LLC. VStock is located at 18 Lafayette Place, Woodmere, New York, New York 11598.
Their telephone number is (212) 828-8436.
Potential Anti-Takeover Effects
Certain provisions set forth in our certificate
of incorporation and our bylaws and in Delaware law, which are summarized below, may be deemed to have an anti-takeover effect and may
delay, deter or prevent a tender offer or takeover attempt that a stockholder might consider to be in its best interests, including attempts
that might result in a premium being paid over the market price for the shares held by stockholders.
Potential Effects of Authorized but Unissued Stock
We have shares of Common Stock and preferred
stock available for future issuance without stockholder approval. We may utilize these additional shares for a variety of corporate purposes,
including future public offerings to raise additional capital, to facilitate corporate acquisitions or payment as a dividend on the capital
stock.
The existence of unissued and unreserved Common
Stock and preferred stock may enable our board of directors to issue shares to persons friendly to current management or to issue preferred
stock with terms that could render more difficult or discourage a third-party attempt to obtain control of us by means of a merger, tender
offer, proxy contest or otherwise, thereby protecting the continuity of our management. In addition, the board of directors has the discretion
to determine designations, rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights,
redemption privileges and liquidation preferences of each series of preferred stock, all to the fullest extent permissible under the
DGCL and subject to any limitations set forth in our certificate of incorporation. The purpose of authorizing the board of directors
to issue preferred stock and to determine the rights and preferences applicable to such preferred stock is to eliminate delays associated
with a stockholder vote on specific issuances. The issuance of preferred stock, while providing desirable flexibility in connection with
possible financings, acquisitions and other corporate purposes, could have the effect of making it more difficult for a third-party to
acquire, or could discourage a third-party from acquiring, a majority of our outstanding voting stock.
Certificate of Incorporation and Bylaws
In addition to the foregoing, our certificate
of incorporation and/or our bylaws contain the following provisions:
Staggered Board. Our board of directors
is divided into three classes of directors, Class I, II and III, with each class serving a term ending at the third annual
meeting following its election.
Nominations of Directors and Proposals of
Business. Our bylaws generally regulate nominations for election of directors by stockholders and proposals of business at annual
meetings. In general, our bylaws require stockholders intending to submit nominations or proposals at an annual meeting of stockholders
to provide the Company with advance notice thereof, including information regarding the stockholder proposing the business as well as
information regarding the nominee or the proposed business. Our bylaws provide a time period during which nominations or business must
be provided to the Company that creates a predictable window for the submission of such notices, eliminating the risk that the Company
finds a meeting will be contested after printing its proxy materials for an uncontested election and providing the Company with a reasonable
opportunity to respond to nominations and proposals by stockholders.
Removal of Directors. Our certificate
of incorporation and bylaws provide that subject to the rights of the holders of any series of preferred stock, any director or the entire
Board may be removed from office at any time, but only for cause.
Board Vacancies. Our certificate of incorporation
generally provides that only the board of directors (and not the stockholders) may fill vacancies and newly created directorships.
Stockholder Action by Written Consent.
Our certificate of incorporation prohibits stockholders from acting by written consent. Accordingly, stockholder action must take place
at an annual or a special meeting of the Company’s stockholders.
Special Meeting of Stockholders. Our certificate
of incorporation generally provides that special meetings of stockholders for any purpose or purposes may be called at any time by our
board of directors, the Chairman of the Board or the Chief Executive Officer. Business transacted at any special meeting of stockholders
shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
Amendment of Certificate of Incorporation
or Bylaws. Our certificate of incorporation requires a supermajority vote of stockholders (at least 66 2/3% in voting power of the
outstanding stock of the Company entitled to vote thereon) to amend our bylaws and certain provisions of our certificate of incorporation.
While the foregoing provisions of our certificate
of incorporation, our bylaws and Delaware law may have an anti-takeover effect, these provisions are intended to enhance the likelihood
of continuity and stability in the composition of the board of directors and in the policies formulated by the board of directors and
to discourage certain types of transactions that may involve an actual or threatened change of control. In that regard, these provisions
are designed to reduce our vulnerability to an unsolicited acquisition proposal. The provisions also are intended to discourage certain
tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers
for our shares and, as a consequence, they also may inhibit fluctuations in the market price of our Common Stock that could result from
actual or rumored takeover attempts. Such provisions also may have the effect of preventing changes in our management.
Delaware Takeover Statute
We are subject to Section 203 of the Delaware
General Corporation Law. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from engaging
in a “business combination” with any “interested stockholder” for three years following the date that the person
became an interested stockholder, unless the interested stockholder attained such status with the approval of our board of directors
or unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things,
a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our assets. In general,
an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding voting stock and any
entity or person affiliated with or controlling or controlled by such entity or person.
Choice of Forum
Unless we consent in writing to the selection
of an alternative forum, the Court of Chancery of the State of Delaware (or, in the event that the Court of Chancery does not have subject
matter jurisdiction, the federal district court of the State of Delaware) is the exclusive forum for (i) any derivative action or proceeding
brought on behalf of the Company, (ii) any action asserting a claim of breach of fiduciary duty owed by any current or former director,
officer, other employee or stockholder of the Company to the Company or the Company’s stockholders (iii) any action asserting a
claim arising pursuant to any provision of the DGCL, our certificate of incorporation or bylaws (as either may be amended or restated)
or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (iv) any action asserting a claim
governed by the internal affairs doctrine of the law of the state of Delaware. The exclusive forum provision also provides that unless
we consent in writing to the selection of an alternative forum, the federal district courts of the United States will be the exclusive
forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. Notwithstanding the foregoing,
the exclusive forum provision will not apply to suits brought to enforce any liability or duty created by the Exchange Act. Nothing in
our certificate of incorporation will preclude stockholders that assert claims under the Exchange Act from bringing such claims in state
or federal court, subject to applicable law.
DESCRIPTION OF SECURITIES
WE ARE OFFERING
We are offering up
to 6,422,018 shares of our Common Stock.
We are offering to certain purchasers whose
purchase of shares in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties,
beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding shares of Common Stock immediately
following the consummation of this offering, the opportunity to purchase, if any such purchaser so chooses, Pre-Funded Warrants, in lieu
of shares of Common Stock that otherwise would result in such purchaser’s beneficial ownership exceeding 4.99% (or, at the election
of the purchaser, 9.99%) of our outstanding shares of Common Stock, to purchase up to 6,422,018 shares of Common Stock.
Common Stock
The material terms and
provisions of our Common Stock are described under the caption “Description of Our Capital Stock” in this prospectus.
Pre-Funded Warrants
The following summary
of certain terms and provisions of the Pre-Funded Warrants that are being offered hereby is not complete and is subject to, and qualified
in its entirety by, the provisions of the form of the Pre-Funded Warrant, which is filed as an exhibit to the registration statement of
which this prospectus forms a part. Prospective investors should carefully review the terms and provisions set forth in the form of Pre-Funded
Warrants.
Duration and Exercise
Price
Each Pre-Funded Warrant
offered hereby will have an initial exercise price equal to $0.00001 per share of Common Stock. The Pre-Funded Warrants will be immediately
exercisable and may be exercised at any time until the Pre-Funded Warrants are exercised in full. The exercise price and number of shares
issuable upon exercise is subject to appropriate proportional adjustment in the event of share dividends, share splits, reclassification
or similar events affecting our Common Stock. The Pre-Funded Warrants will be issued in certificated form only.
Exercisability
The Pre-Funded Warrants
will be exercisable, at the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice. A holder
may not exercise any portion of the Pre-Funded Warrant to the extent that the holder, together with its affiliates and any other persons
acting as a group together with any such persons, would own more than 4.99% (or, at the election of the purchaser, 9.99%) of the number
of shares of Common Stock outstanding immediately after exercise (the “Beneficial Ownership Limitation”); provided that a
holder with a Beneficial Ownership Limitation of 4.99%, upon notice to us and effective sixty-one (61) days after the date such notice
is delivered to us, may increase the Beneficial Ownership Limitation so long as it in no event exceeds 9.99% of the number of shares
of Common Stock outstanding immediately after exercise.
Cashless Exercise
In lieu of making the
cash payment otherwise contemplated to be made to us upon exercise of the Pre-Funded Warrants in payment of the aggregate exercise price,
the holder may exercise its Pre-Funded Warrants (either in whole or in part), at such time by means of a cashless exercise in which the
holder shall be entitled to receive upon such exercise the net number of shares of Common Stock determined according to a formula set
forth in the Pre-Funded Warrants, which generally provides for a number of shares equal to (A) (1) the volume weighted average price
on the trading day preceding the notice of exercise, if the notice of exercise is executed and delivered (x) on a day that is not a trading
day or (y) prior to the opening of “regular trading hours” on a trading day or (2) the VWAP on the trading day immediately
preceding the date of the notice of exercise, if the notice of exercise is executed and delivered during “regular trading hours”
on a trading day, or (3) the bid price on the day of the notice of exercise, if the notice of exercise is executed after the close of
“regular trading hours” on a trading day, less (B) the exercise price, multiplied by (C) the number of shares of Common Stock
the Pre-Funded Warrant was exercisable into, with such product then divided by the number determined under clause (A) in this sentence.
Fractional Shares
No fractional shares of Common Stock will be
issued upon the exercise of the Pre-Funded Warrants. Rather, we will, at our election, and in lieu of the issuance of such fractional
share, either (i) pay cash in an amount equal to such fraction multiplied by the exercise price or (ii) round up to the next whole share
issuable upon exercise of the Pre-Funded Warrant.
Transferability
Subject to applicable
laws, a Pre-Funded Warrant may be transferred at the option of the holder upon surrender of the Pre-Funded Warrant to us together with
the appropriate instruments of transfer and funds sufficient to pay any transfer taxes payable upon such transfer.
Trading Market
There is no trading
market available for the Pre-Funded Warrants on any securities exchange or nationally recognized trading system. We do not intend to
list the Pre-Funded Warrants on any securities exchange or nationally recognized trading system.
Rights as a Stockholder
Except as otherwise
provided in the Pre-Funded Warrants or by virtue of such holder’s ownership of shares of Common Stock, the holders of the Pre-Funded
Warrants do not have the rights or privileges of holders of our Common Stock, including any voting rights, until they exercise their
Pre-Funded Warrants. The Pre-Funded Warrants will provide that holders have the right to participate in distributions or dividends paid
on Common Stock.
Fundamental Transaction
In the event of a fundamental
transaction, as described in the Pre-Funded Warrants and generally including any reorganization, recapitalization or reclassification
of our Common Stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation
or merger with or into another person, the consummation of a business combination with another person or group of persons whereby such
other person or group acquires greater than 50% of the voting power of the outstanding Common Stock and preferred stock, the holders
of the Pre-Funded Warrants will be entitled to receive upon exercise of the Pre-Funded Warrants the kind and amount of securities, cash
or other property that the holders would have received had they exercised the Pre-Funded Warrants immediately prior to such fundamental
transaction.
MATERIAL UNITED STATES
FEDERAL INCOME TAX CONSIDERATIONS
The following discussion
describes the material U.S. federal income tax consequences of the acquisition, ownership and disposition of the Common Stock acquired
in this offering. This discussion is based on the current provisions of the Internal Revenue Code of 1986, as amended, referred to as
the Code, existing and proposed U.S. Treasury regulations promulgated thereunder, and administrative rulings and court decisions in effect
as of the date hereof, all of which are subject to change at any time, possibly with retroactive effect. No ruling has been or will be
sought from the Internal Revenue Service, or IRS, with respect to the matters discussed below, and there can be no assurance the IRS
will not take a contrary position regarding the tax consequences of the acquisition, ownership or disposition of the Common Stock and
Pre-Funded Warrants or that any such contrary position would not be sustained by a court.
We assume in this discussion
that the shares of Common Stock and Pre-Funded Warrants will be held as capital assets (generally, property held for investment). This
discussion does not address all aspects of U.S. federal income taxes, does not discuss the potential application of the Medicare contribution
tax or the alternative minimum tax and does not address state or local taxes or U.S. federal gift and estate tax laws, except as specifically
provided below with respect to non-U.S. holders, or any non-U.S. tax consequences that may be relevant to holders in light of their particular
circumstances. This discussion also does not address the special tax rules applicable to particular holders, such as:
| ● | persons
who acquired our Common Stock and Pre-Funded Warrants as compensation for services; |
| ● | traders
in securities that elect to use a mark-to-market method of accounting for their securities holdings; |
| ● | persons
that own, or are deemed to own, more than 5% of our Common Stock (except to the extent specifically set forth below); |
| ● | persons
required for U.S. federal income tax purposes to conform the timing of income accruals to their financial statements under Section 451(b) of
the Code (except to the extent specifically set forth below); |
| ● | persons
for whom our Common Stock constitutes “qualified small business stock” within the meaning of Section 1202 of the Code
or “Section 1244 stock” for purposes of Section 1244 of the Code; |
| ● | persons
deemed to sell our Common Stock and Pre-Funded under the constructive sale provisions of the Code; |
| ● | banks
or other financial institutions; |
| ● | brokers
or dealers in securities or currencies; |
| ● | tax-exempt
organizations or tax-qualified retirement plans; |
| ● | regulated
investment companies or real estate investment trusts; |
| ● | persons
that hold the Common Stock and Pre-Funded Warrants as part of a straddle, hedge, conversion transaction, synthetic security or other
integrated investment; |
| ● | controlled
foreign corporations, passive foreign investment companies, or corporations that accumulate earnings to avoid U.S. federal income tax;
and |
| ● | certain
U.S. expatriates, former citizens, or long-term residents of the United States. |
In addition, this discussion
does not address the tax treatment of partnerships (including any entity or arrangement classified as a partnership for U.S. federal
income tax purposes) or other pass-through entities or persons who hold shares of Common Stock through such partnerships or other entities
which are pass-through entities for U.S. federal income tax purposes. If such a partnership or other pass-through entity holds shares
of Common Stock and Pre-Funded Warrants, the treatment of a partner in such partnership or investor in such other pass-through entity
generally will depend on the status of the partner or investor and upon the activities of the partnership or other pass-through entity.
A partner in such a partnership and an investor in such other pass-through entity that will hold shares of Common Stock and Pre-Funded
Warrants should consult his, her or its own tax advisor regarding the tax consequences of the ownership and disposition of shares of
Common Stock and Pre-Funded through such partnership or other pass-through entity, as applicable.
This discussion of
U.S. federal income tax considerations is for general information purposes only and is not tax advice. Prospective investors should consult
their own tax advisors regarding the U.S. federal, state, local and non-U.S. income and other tax considerations of acquiring, holding
and disposing of our Common Stock and Pre-Funded Warrants.
For the purposes of
this discussion, a “U.S. Holder” means a beneficial owner of shares of Common Stock and Pre-Funded Warrants that is for U.S.
federal income tax purposes (a) an individual citizen or resident of the United States, (b) a corporation (or other entity
taxable as a corporation for U.S. federal income tax purposes), created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, (c) an estate the income of which is subject to U.S. federal income taxation regardless of
its source, or (d) a trust if it (1) is subject to the primary supervision of a court within the United States and one or more
U.S. persons (within the meaning of Section 7701(a)(30) of the Code) has the authority to control all substantial decisions of the
trust or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a domestic trust. A “Non-U.S.
Holder” is, for U.S. federal income tax purposes, a beneficial owner of shares of Common Stock and Pre-Funded Warrants that is
not a U.S. Holder or a partnership for U.S. federal income tax purposes.
Potential Acceleration
of Income
Under tax legislation
signed into law in December 2017 commonly known as the Tax Cuts and Jobs Act of 2017, U.S. Holders that use an accrual method of
accounting for tax purposes and have certain financial statements generally will be required to include certain amounts in income no
later than the time such amounts are taken into account as revenue in such financial statements.
In addition, under the
Inflation Reduction Act signed into law on August 16, 2022, certain large corporations (generally, corporations reporting at least
$1 billion average adjusted pre-tax net income on their consolidated financial statements) are potentially subject to a 15% alternative
minimum tax on the “adjusted financial statement income” of such large corporations for tax years beginning after December 31,
2022. The U.S. Treasury Department, the IRS, and other standard-setting bodies are expected to issue guidance on how the alternative
minimum tax provisions of the Inflation Reduction Act will be applied or otherwise administered.
The application of these
rules thus may require the accrual of income earlier than would be the case under the general tax rules described below, although
the precise application of these rules is unclear at this time. U.S. Holders that use an accrual method of accounting should consult
with their tax advisors regarding the potential applicability of this legislation to their particular situation.
Treatment of Pre-Funded
Warrants
Although it is not entirely
free from doubt, a pre-funded warrant should be treated as a share of Common Stock for U.S. federal income tax purposes and a holder
of Pre-Funded Warrants should generally be taxed in the same manner as a holder of Common Stock, as described below. Accordingly, no
gain or loss should be recognized upon the exercise of a Pre-Funded Warrant and, upon exercise, the holding period of a Pre-Funded Warrant
should carry over to the share of Common Stock received. Similarly, the tax basis of the Pre-Funded Warrant should carry over to the
share of Common Stock received upon exercise, increased by the exercise price of $0.00001 per share. Each holder should consult his,
her or its own tax advisor regarding the risks associated with the acquisition of Pre-Funded Warrants pursuant to this offering (including
potential alternative characterizations). The balance of this discussion generally assumes that the characterization described above
is respected for U.S. federal income tax purposes.
Tax Considerations
Applicable to U.S. Holders
Distributions
As discussed above,
we currently anticipate that we will retain future earnings, if any, to finance the growth and development of our business and do not
intend to pay cash dividends in respect of shares of Common Stock in the foreseeable future. In the event that we do make distributions
on our Common Stock to a U.S. Holder, those distributions generally will constitute dividends for U.S. tax purposes to the extent paid
out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles). Distributions in excess
of our current and accumulated earnings and profits will constitute a return of capital that is applied against and reduces, but not
below zero, a U.S. Holder’s adjusted tax basis in our Common Stock. Any remaining excess will be treated as gain realized on the
sale or exchange of shares of Common Stock as described below under the section titled “Disposition of Common Stock and Pre-Funded
Warrants.”
Certain Adjustments
to Pre-Funded Warrants
The number of shares
of Common Stock issued upon the exercise of the Pre-Funded Warrants and the exercise price of Pre-Funded Warrants are subject to adjustment
in certain circumstances. Adjustments (or failure to make adjustments) that have the effect of increasing a U.S. Holder’s proportionate
interest in our assets or earnings and profits may, in some circumstances, result in a constructive distribution to the U.S. Holder.
Adjustments to the conversion rate made pursuant to a bona fide reasonable adjustment formula which has the effect of preventing the
dilution of the interest of the holders of Pre-Funded Warrants generally should not be deemed to result in a constructive distribution.
If an adjustment is made that does not qualify as being made pursuant to a bona fide reasonable adjustment formula, a U.S. Holder of
Pre-Funded Warrants may be deemed to have received a constructive distribution from us, even though such U.S. Holder has not received
any cash or property as a result of such adjustment. The tax consequences of the receipt of a distribution from us are described above
under “Distributions.”
Disposition of
Common Stock and Pre-Funded Warrants
Upon a sale or other
taxable disposition (other than a redemption treated as a distribution, which will be taxed as described above under “Distributions”)
of shares of Common Stock and , Pre-Funded Warrants , a U.S. Holder generally will recognize capital gain or loss in an amount equal
to the difference between the amount realized and the U.S. Holder’s adjusted tax basis in the Common Stock and , Pre-Funded Warrants
sold. Capital gain or loss will constitute long-term capital gain or loss if the U.S. Holder’s holding period for the Common Stock
and Pre-Funded Warrants exceeds one year. The deductibility of capital losses is subject to certain limitations. U.S. Holders who recognize
losses with respect to a disposition of shares of Common Stock and Pre-Funded Warrants should consult their own tax advisors regarding
the tax treatment of such losses.
Information Reporting
and Backup Reporting
Information reporting
requirements generally will apply to payments of distributions (including constructive distributions) on the Common Stock and Pre-Funded
Warrants and to the proceeds of a sale or other disposition of Common Stock and Pre-Funded Warrants paid by us to a U.S. Holder unless
such U.S. Holder is an exempt recipient, such as a corporation. Backup withholding will apply to those payments if the U.S. Holder fails
to provide the holder’s taxpayer identification number, or certification of exempt status, or if the holder otherwise fails to
comply with applicable requirements to establish an exemption.
Backup withholding is
not an additional tax. Rather, any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against
the U.S. Holder’s U.S. federal income tax liability provided the required information is timely furnished to the IRS. U.S. Holders
should consult their own tax advisors regarding their qualification for exemption from information reporting and backup withholding and
the procedure for obtaining such exemption.
Tax Considerations
Applicable to Non-U.S. Holders
Certain Adjustments
to Warrants
As described under “—U.S.
Holders—Certain Adjustments to Pre-Funded Warrants,” an adjustment to the Pre-Funded Warrants could result in a constructive
distribution to a Non-U.S. Holder, which would be treated as described under “Distributions” below. Any resulting withholding
tax attributable to deemed dividends would be collected from other amounts payable or distributable to the Non-U.S. Holder. Non-U.S. Holders
should consult their tax advisors regarding the proper treatment of any adjustments to the Pre-Funded Warrants.
In addition, regulations
governing “dividend equivalents” under Section 871(m) of the Code may apply to the Pre-Funded Warrants. Under those
regulations, an implicit or explicit payment under Pre-Funded Warrants that references a dividend distribution on our Common Stock would
possibly be taxable to a Non-U.S. Holder as described under “Distributions” below. Such dividend equivalent amount would be
taxable and subject to withholding whether or not there is actual payment of cash or other property, and the Company may satisfy any withholding
obligations it has in respect of the Pre-Funded Warrants by withholding from other amounts due to the Non-U.S. Holder. Non-U.S. Holders
are encouraged to consult their own tax advisors regarding the application of Section 871(m) of the Code to the Pre-Funded Warrants.
Distributions
As discussed above, we
currently anticipate that we will retain future earnings, if any, to finance the growth and development of our business and do not intend
to pay cash dividends in respect of our Common Stock in the foreseeable future. In the event that we do make distributions on our Common
Stock to a Non-U.S. Holder, those distributions generally will constitute dividends for U.S. federal income tax purposes as described
in “—U.S. Holders—Distributions.” To the extent those distributions do not constitute dividends for U.S. federal
income tax purposes (i.e., the amount of such distributions exceeds both our current and our accumulated earnings and profits), they will
constitute a return of capital and will first reduce a Non-U.S. Holder’s basis in our Common Stock (determined separately with respect
to each share of Common Stock), but not below zero, and then will be treated as gain from the sale of that share Common Stock as described
below under the section titled “—Disposition of Common Stock and Pre-Funded Warrants .”
Any distribution (including
constructive distributions) on shares of Common Stock that is treated as a dividend paid to a Non-U.S. Holder that is not effectively
connected with the holder’s conduct of a trade or business in the United States will generally be subject to withholding tax at
a 30% rate or such lower rate as may be specified by an applicable income tax treaty between the United States and the Non-U.S. Holder’s
country of residence. To obtain a reduced rate of withholding under a treaty, a Non-U.S. Holder generally will be required to provide
the applicable withholding agent with a properly executed IRS Form W-8BEN, IRS Form W-8BEN-E or other appropriate form,
certifying the Non-U.S. Holder’s entitlement to benefits under that treaty. Such form must be provided prior to the payment of dividends
and must be updated periodically. If a Non-U.S. Holder holds stock through a financial institution or other agent acting on the holder’s
behalf, the holder will be required to provide appropriate documentation to such agent. The holder’s agent may then be required
to provide certification to the applicable withholding agent, either directly or through other intermediaries. If you are eligible for
a reduced rate holding tax under an income tax treaty, you should consult with your own tax advisor to determine if you are able to obtain
a refund or credit of any excess amounts withheld by timely filing an appropriate claim for a refund with the IRS.
We generally are not
required to withhold tax on dividends paid (or constructive dividends deemed paid) to a Non-U.S. Holder that are effectively connected
with the holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty,
are attributable to a permanent establishment or fixed base that the holder maintains in the United States) if a properly executed IRS
Form W-8ECI, stating that the dividends are so connected, is furnished to us (or, if stock is held through a financial institution
or other agent, to the applicable withholding agent). In general, such effectively connected dividends will be subject to U.S. federal
income tax on a net income basis at the regular tax rates applicable to U.S. persons. A corporate Non-U.S. Holder receiving effectively
connected dividends may also be subject to an additional “branch profits tax,” which is imposed, under certain circumstances,
at a rate of 30% (or such lower rate as may be specified by an applicable treaty) on the corporate Non-U.S. Holder’s effectively
connected earnings and profits, subject to certain adjustments.
See also the sections
below titled “Backup Withholding and Information Reporting” and “Foreign Accounts” for additional withholding
rules that may apply to dividends paid to certain foreign financial institutions or non-financial foreign entities.
Disposition of
Common Stock and Pre-Funded Warrants
Subject to the discussions
below under the sections titled “Backup Withholding and Information Reporting” and “Foreign Accounts,” a Non-U.S.
Holder generally will not be subject to U.S. federal income or withholding tax with respect to gain recognized on a sale or other disposition
(other than a redemption treated as a distribution, which will be taxable as described above under “Distributions”) of shares
of Common Stock and , Pre-Funded Warrants unless:
| ● | the
gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the United States, and if an applicable
income tax treaty so provides, the gain is attributable to a permanent establishment or fixed base maintained by the Non-U.S. Holder
in the United States; in these cases, the Non-U.S. Holder will be taxed on a net income basis at the regular tax rates and in the manner
applicable to U.S. persons, and if the Non-U.S. Holder is a corporation, an additional branch profits tax at a rate of 30%, or
a lower rate as may be specified by an applicable income tax treaty, may also apply; |
| ● | the
Non-U.S. Holder is a nonresident alien present in the United States for 183 days or more in the taxable year of the disposition and certain
other requirements are met, in which case the Non-U.S. Holder will be subject to a 30% tax (or such lower rate as may be specified by
an applicable income tax treaty between the United States and such holder’s country of residence) on the net gain derived from
the disposition, which may be offset by certain U.S.-source capital losses of the Non-U.S. Holder, if any; or |
| ● | the
Common Stock constitutes a U.S. real property interest because we are, or have been at any
time during the five-year period preceding such disposition (or the Non-U.S. Holder’s
holding period of the Common Stock and Pre-Funded Warrants , if shorter), a “U.S. real
property holding corporation,” unless the Common Stock is regularly traded on an established
securities market, as defined by applicable Treasury Regulations, and the Non-U.S. Holder
held no more than 5% of our outstanding Common Stock, directly or indirectly, during the
shorter of the five-year period ending on the date of the disposition or the period
that the Non-U.S. Holder held the Common Stock. Special rules may apply to the determination
of the 5% threshold in the case of a holder of Pre-Funded Warrants. Non-U.S. Holders are
urged to consult their own tax advisors regarding the effect of holding Pre-Funded Warrants
on the calculation of such 5% threshold. Generally, a corporation is a “U.S. real property
holding corporation” if the fair market value of its “U.S. real property interests”
(as defined in the Code and applicable regulations) equals or exceeds 50% of the sum of the
fair market value of its worldwide real property interests plus its other assets used or
held for use in a trade or business. Although there can be no assurance, we believe that
we are not currently, and we do not anticipate becoming, a “U.S. real property holding
corporation” for U.S. federal income tax purposes. No assurance can be provided that
the Common Stock will be regularly traded on an established securities market for purposes
of the rules described above. Non-U.S. Holders are urged to consult their own tax advisors
regarding the U.S. federal income tax considerations that could result if we are, or become
a “U.S. real property holding corporation.” |
See the sections
titled “Backup Withholding and Information Reporting” and “Foreign Accounts” for additional information regarding
withholding rules that may apply to proceeds of a disposition of the Common Stock and Pre-Funded Warrants paid to foreign financial
institutions or non-financial foreign entities.
Backup Withholding
and Information Reporting
We must report annually
to the IRS and to each Non-U.S. Holder the gross amount of the distributions (including constructive distributions) on the Common Stock
and Pre-Funded Warrants paid to such holder and the tax withheld, if any, with respect to such distributions. Non-U.S. Holders may have
to comply with specific certification procedures to establish that the holder is not a U.S. person (as defined in the Code) in order to
avoid backup withholding at the applicable rate, currently 24%, with respect to dividends (or constructive dividends) on the Common Stock
and Pre-Funded Warrants. Generally, a holder will comply with such procedures if it provides a properly executed IRS Form W-8BEN
(or other applicable Form W-8) or otherwise meets documentary evidence requirements for establishing that it is a Non-U.S. Holder,
or otherwise establishes an exemption. Dividends paid to Non-U.S. Holders subject to withholding of U.S. federal income tax, as described
above under the heading “Distributions,” will generally be exempt from U.S. backup withholding.
Information reporting
and backup withholding generally will apply to the proceeds of a disposition of the Common Stock and Pre-Funded Warrants by a Non-U.S.
Holder effected by or through the U.S. office of any broker, U.S. or foreign, unless the holder certifies its status as a Non-U.S. Holder
and satisfies certain other requirements, or otherwise establishes an exemption. Generally, information reporting and backup withholding
will not apply to a payment of disposition proceeds to a Non-U.S. Holder where the transaction is effected outside the United States through
a non-U.S. office of a broker. However, for information reporting purposes, dispositions effected through a non-U.S. office of a broker
with substantial U.S. ownership or operations generally will be treated in a manner similar to dispositions effected through a U.S. office
of a broker. Non-U.S. Holders should consult their own tax advisors regarding the application of the information reporting and backup
withholding rules to them.
Copies of information
returns may be made available to the tax authorities of the country in which the Non-U.S. Holder resides or is incorporated under the
provisions of a specific treaty or agreement.
Backup withholding is
not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a Non-U.S. Holder can be refunded
or credited against the Non-U.S. Holder’s U.S. federal income tax liability, if any, provided that an appropriate claim is timely
filed with the IRS.
Foreign Accounts
The Foreign Account Tax
Compliance Act, or FATCA, generally imposes a 30% withholding tax on dividends (including constructive dividends) on the Common Stock
and Pre-Funded Warrants if paid to a non-U.S. entity unless (i) if the non-U.S. entity is a “foreign financial institution,”
the non-U.S. entity undertakes certain due diligence, reporting, withholding, and certification obligations, (ii) if the non-U.S.
entity is not a “foreign financial institution,” the non-U.S. entity identifies certain of its U.S. investors, if any, or
(iii) the non-U.S. entity is otherwise exempt under FATCA.
Withholding under FATCA
generally will apply to payments of dividends (including constructive dividends) on our Common Stock and Pre-Funded Warrants. While withholding
under FATCA would have also applied to payments of gross proceeds from a sale or other disposition of the Common Stock and, Pre-Funded
Warrants, under proposed U.S. Treasury Regulations withholding on payments of gross proceeds is not required. Although such regulations
are not final, applicable withholding agents may rely on the proposed regulations until final regulations are issued.
An intergovernmental
agreement between the United States and an applicable foreign country may modify the requirements described in this section. Under certain
circumstances, a holder may be eligible for refunds or credits of the tax. Holders should consult their own tax advisors regarding the
possible implications of FATCA on their investment in the Common Stock and Pre-Funded Warrants.
The preceding discussion
of material U.S. federal tax considerations is for information only. It is not tax advice. Prospective investors should consult their
own tax advisors regarding the particular U.S. federal, state, local and non-U.S. tax consequences of purchasing, holding and disposing
of the Common Stock and Pre-Funded Warrants including the consequences of any proposed changes in applicable laws.
PLAN OF DISTRIBUTION
We engaged RBW Capital
Partners LLC acting through Dominari Securities LLC to act as our exclusive Placement Agent to solicit offers to purchase the Securities
offered by this prospectus on a reasonable best-efforts basis. Subject to the terms and conditions of the placement agency agreement
dated August [●], 2024. The Placement Agent is not purchasing or selling any of the Securities offered by this prospectus, nor
is it required to arrange the purchase or sale of any specific number or dollar amount of Securities, but has agreed to use its reasonable
best efforts to arrange for the sale of the Securities offered hereby. Therefore, we may not sell the entire amount of Securities offered
pursuant to this prospectus. The Placement Agent may engage one or more sub-placement agents or selected dealers to assist with the offering.
We will enter into a securities purchase agreement directly with certain investors, at the investor’s option, who purchase our
Securities in this offering. Investors who do not enter into a securities purchase agreement shall rely solely on this prospectus and
the documents incorporated by reference herein in connection with the purchase of our Securities in this offering. In addition to
rights and remedies available to all purchasers in this offering under federal securities and state law, the investors which enter into
a securities purchase agreement will also be able to bring claims of breach of contract against us. The ability to pursue a claim for
breach of contract is material to larger investors in this offering as a means to enforce the following covenants uniquely available
to them under the securities purchase agreement: a covenant to not enter into any equity financings for thirty (30) days from closing
of the offering, subject to certain exceptions.
We will deliver the Securities
being issued to the investors upon receipt of such investor’s funds for the purchase of the Securities offered pursuant to this
prospectus. We will deliver the Securities being offered pursuant to this prospectus upon closing. We expect this offering to be completed
not later than one (1) business day following the commencement of this offering. We will deliver all Securities to be issued in connection
with this offering delivery versus payment (“DVP”)/receipt versus payment (“RVP”) upon receipt of investor funds
received by us. We expect to deliver the Securities being offered pursuant to this prospectus on or about ,
2024.
We have agreed to indemnify
the Placement Agent and specified other persons against specified liabilities, including liabilities under the Securities Act, and to
contribute to payments the Placement Agent may be required to make in respect thereof.
Fees and Expenses
We have agreed to pay
the Placement Agent a fee based on the aggregate proceeds as set forth in the table below (assuming the sale of all of the Securities
we are offering):
| |
Per Share | | |
Per Pre- Funded Warrant | | |
Total | |
Public offering price | |
$ | | | |
$ | | | |
$ | | |
Placement Agent fees (1) | |
$ | | | |
$ | | | |
$ | | |
Proceeds to us, before expenses (2) | |
$ | | | |
$ | | | |
$ | | |
(1) |
We have agreed to pay the Placement Agent a total cash fee equal to 2.5% of the gross proceeds of the offering. We have also agreed to reimburse the Placement Agent for its accountable offering-related legal expenses and other expenses in an amount up to $60,000. |
|
|
(2) |
Does not include proceeds from the exercise of the Pre-Funded Warrants in cash, if any. |
We estimate the total
expenses payable by us for this offering, excluding the Placement Agent fees and expenses, will be approximately $162,600.
Tail Period
If there is a closing
of this Offering, the Placement Agent shall be entitled to a cash fee equal to 2.5% of the gross proceeds received by us from any public
offering or other equity financing of any kind during the period within six (6) months following the expiration or termination of the
engagement letter dated as of July 19, 2024 by and between the Placement Agent and us.
Lock-Up Agreements
Pursuant to “lock-up” agreements,
we have agreed for a period of thirty (30) days after the date of this prospectus and our executive officers and directors have agreed
for a period of ninety (90) days after the date of this prospectus, subject to customary exceptions, without the prior written consent
of the representative, not to, directly or indirectly, offer pledge, sell, contract to sell, grant, lend or otherwise transfer or dispose
of any of shares of (or enter into any transaction or device that is designed to, or could be expected to, result in the transfer or
disposition by any person at any time in the future of) our Common Stock, enter into any swap or other derivatives transaction that transfers
to another, in whole or in part, any of the economic benefits or risks of ownership of shares of our Common Stock, make any demand for
or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration
of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or any other securities
of ours or publicly disclose the intention to do any of the foregoing.
Discretionary Accounts
The Placement Agent does
not intend to confirm sales of the Securities offered hereby to any accounts over which it has discretionary authority.
Listing
Our Common Stock
is listed on the Nasdaq under the symbol “VRPX.” On August 9, 2024, the last reported sale price of our Common Stock
on the Nasdaq was $1.09 per share. We do not plan to list the Pre-Funded Warrants on Nasdaq or any other securities exchange or trading
market.
Regulation M
The Placement Agent may
be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any
profit realized on the resale of the Securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions
under the Securities Act. As an underwriter, the Placement Agent would be required to comply with the requirements of the Securities Act
and the Exchange Act, including, without limitation, Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations may
limit the timing of purchases and sales of our Securities by the placement agent acting as principal. Under these rules and regulations,
the Placement Agent (i) may not engage in any stabilization activity in connection with our Securities and (ii) may not bid for or purchase
any of our Securities or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act,
until it has completed its participation in the distribution.
Determination of
Offering Price
The actual offering price
of the Securities were negotiated between us, the Placement Agent and the investors in the offering based on the trading of our Common
Shares prior to the offering, among other things. Other factors considered in determining the public offering price of the Securities
we are offering, include our history and prospects, the stage of development of our business, our business plans for the future and the
extent to which they have been implemented, an assessment of our management, the general conditions of the securities markets at the time
of the offering and such other factors as were deemed relevant.
Electronic Distribution
A prospectus in electronic
format may be made available on a website maintained by the Placement Agent. In connection with the offering, the Placement Agent or selected
dealers may distribute prospectuses electronically. No forms of electronic prospectus other than prospectuses that are printable as Adobe®
PDF will be used in connection with this offering.
Other than the prospectus
in electronic format, the information on the Placement Agent’s website and any information contained in any other website maintained
by the Placement Agent is not part of the prospectus or the registration statement of which this prospectus forms a part, has not been
approved and/or endorsed by us or the Placement Agent in its capacity as placement agent and should not be relied upon by investors.
Other Relationships
From time to time, the
Placement Agent and/or its affiliates may have provided, and may in the future provide, various investment banking and other financial
services for us for which they may receive customary fees. In the course of its business, the Placement Agent and its affiliates may
actively trade our securities or loans for its own account or for the accounts of customers, and, accordingly, the Placement Agent and
its respective affiliates may at any time hold long or short positions in such securities or loans.
Selling Restrictions
Other than in the United
States of America, no action has been taken by us or the Placement Agent that would permit a public offering of the Securities offered
by this prospectus in any jurisdiction where action for that purpose is required. The Securities offered by this prospectus may not be
offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the
offer and sale of any such Securities be distributed or published in any jurisdiction, except under circumstances that will result in
compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised
to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus
does not constitute an offer to sell or a solicitation of an offer to buy any Securities offered by this prospectus in any jurisdiction
in which such an offer or a solicitation is unlawful.
European Economic
Area
In relation to each Member
State of the European Economic Area (each, a Member State), no Securities have been offered or will be offered pursuant to this offering
to the public in that Member State prior to the publication of a prospectus in relation to our Securities which has been approved by the
competent authority in that Member State or, where appropriate, approved in another Member State and notified to the competent authority
in that Member State, all in accordance with the Prospectus Regulation, except that offers of securities may be made to the public in
that Member State at any time under the following exemptions under the Prospectus Regulation:
| (a) | to any legal entity which is a qualified investor as defined
in the Prospectus Regulation; |
| (b) | by the placement agent to fewer than 150 natural or legal
persons (other than qualified investors as defined in the Prospectus Regulation), subject to obtaining the prior written consent of the
representatives for any such offer; or |
| (c) | in any other circumstances falling within Article 1(4) of
the Prospectus Regulation, |
provided that no such
offer of our Securities shall result in a requirement for us or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus
Regulation or supplement a prospectus pursuant to Article 23 of the Prospectus Regulation.
Each person in a Member
State who initially acquires any of our Securities or to whom any offer is made will be deemed to have represented, acknowledged, and
agreed with us and the representatives that it is a qualified investor within the meaning of the Prospectus Regulation.
In the case of any of
our Securities are being offered to a financial intermediary as that term is used in Article 5(1) of the Prospectus Regulation, each such
financial intermediary will be deemed to have represented, acknowledged and agreed that the Securities acquired by it in the offer have
not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons
in circumstances which may give rise to an offer to the public other than their offer or resale in a Member State to qualified investors,
in circumstances in which the prior written consent of the representatives has been obtained to each such proposed offer or resale.
We, the placement agent,
and their affiliates will rely upon the truth and accuracy of the foregoing representations, acknowledgments, and agreements.
For the purposes of this
provision, the expression an “offer to the public” in relation to any of our Securities in any Member State means the communication
in any form and by any means of sufficient information on the terms of the offer and any of our Securities to be offered so as to enable
an investor to decide to purchase or subscribe for our Securities, and the expression “Prospectus Regulation” means Regulation
(EU) 2017/1129.
United Kingdom
No securities have been
offered or will be offered pursuant to this offering to the public in the United Kingdom prior to the publication of a prospectus in relation
to the securities which has been approved by the Financial Conduct Authority, except that the securities may be offered to the public
in the United Kingdom at any time:
| (a) | to any legal entity which is a qualified investor as defined
under Article 2 of the UK Prospectus Regulation; |
| (b) | to fewer than 150 natural or legal persons (other than qualified
investors as defined under Article 2 of the UK Prospectus Regulation), subject to obtaining the prior consent of the representatives
for any such offer; or |
| (c) | in any other circumstances falling within Section 86 of the
Financial Services and Markets Act 2000, or FSMA; |
provided that no such
offer of the securities shall require the us or any placement agent to publish a prospectus pursuant to Section 85 of the FSMA or supplement
a prospectus pursuant to Article 23 of the UK Prospectus Regulation. For the purposes of this provision, the expression an “offer
to the public” in relation to the securities in the United Kingdom means the communication in any form and by any means of sufficient
information on the terms of the offer and any shares to be offered so as to enable an investor to decide to purchase or subscribe for
any securities and the expression “UK Prospectus Regulation” means Regulation (EU) 2017/1129 as it forms part of domestic
law by virtue of the European Union (Withdrawal) Act 2018.
Canada
The Securities may be
sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National
Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in
National Instrument 31 103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Securities must
be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities
laws.
Securities legislation
in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus supplement
(including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by
the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser
should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars
of these rights or consult with a legal advisor.
Pursuant to section 3A.3
of National Instrument 33 105 Underwriting Conflicts (NI 33 105), the placement agent are not required to comply with the disclosure requirements
of NI 33-105 regarding placement agent conflicts of interest in connection with this offering.
Israel
This document does not
constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed with or approved by
the Israel Securities Authority. In the State of Israel, this document is being distributed only to, and is directed only at, and any
offer of the securities is directed only at, investors listed in the first addendum, or the Addendum, to the Israeli Securities Law, consisting
primarily of joint investment in trust funds, provident funds, insurance companies, banks, portfolio managers, investment advisors, members
of the Tel Aviv Stock Exchange, placement agent, venture capital funds, entities with equity in excess of NIS 50 million and “qualified
individuals,” each as defined in the Addendum (as it may be amended from time to time), collectively referred to as qualified investors
(in each case purchasing for their own account or, where permitted under the Addendum, for the accounts of their clients who are investors
listed in the Addendum). Qualified investors will be required to submit written confirmation that they fall within the scope of the Addendum,
are aware of the meaning of same and agree to it.
Hong Kong
Our Securities may not
be offered or sold in Hong Kong by means of any document other than (1) in circumstances which do not constitute an offer to the public
within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) (“Companies
(Winding Up and Miscellaneous Provisions) Ordinance”) or which do not constitute an invitation to the public within the meaning
of the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong), or the Securities and Futures Ordinance, or (2) to “professional
investors” as defined in the Securities and Futures Ordinance and any rules made thereunder, or (3) in other circumstances which
do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance,
and no advertisement, invitation or document relating to our Securities may be issued or may be in the possession of any person for the
purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed
or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to securities
which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” in Hong
Kong as defined in the Securities and Futures Ordinance and any rules made thereunder.
Singapore
This prospectus has not
been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material
in connection with the offer or sale, or invitation for subscription or purchase, of our Securities may not be circulated or distributed,
nor may our Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly,
to persons in Singapore other than (1) to an institutional investor (as defined under Section 4A of the Securities and Futures Act, Chapter
289 of Singapore, or the SFA) under Section 274 of the SFA, (2) to a relevant person (as defined in Section 275(2) of the SFA) pursuant
to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in
Section 275 of the SFA or (3) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA,
in each case subject to conditions set forth in the SFA.
Where our Securities
are subscribed or purchased under Section 275 of the SFA by a relevant person which is a corporation (which is not an accredited investor
(as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned
by one or more individuals, each of whom is an accredited investor, the securities (as defined in Section 239(1) of the SFA) of that corporation
shall not be transferable for six months after that corporation has acquired our Securities under Section 275 of the SFA except: (1) to
an institutional investor under Section 274 of the SFA or to a relevant person (as defined in Section 275(2) of the SFA), (2) where such
transfer arises from an offer in that corporation’s securities pursuant to Section 275(1A) of the SFA, (3) where no consideration
is or will be given for the transfer, (4) where the transfer is by operation of law, (5) as specified in Section 276(7) of the SFA, or
(6) as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore,
or Regulation 32.
Where our Securities
are subscribed or purchased under Section 275 of the SFA by a relevant person which is a trust (where the trustee is not an accredited
investor (as defined in Section 4A of the SFA)) whose sole purpose is to hold investments and each beneficiary of the trust is an accredited
investor, the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferable for six months after
that trust has acquired our Securities under Section 275 of the SFA except: (1) to an institutional investor under Section 274 of the
SFA or to a relevant person (as defined in Section 275(2) of the SFA), (2) where such transfer arises from an offer that is made on terms
that such rights or interest are acquired at a consideration of not less than $200,000 (or its equivalent in a foreign currency) for each
transaction (whether such amount is to be paid for in cash or by exchange of securities or other assets), (3) where no consideration is
or will be given for the transfer, (4) where the transfer is by operation of law, (5) as specified in Section 276(7) of the SFA, or (6)
as specified in Regulation 32.
Japan
The Securities have not
been and will not be registered under the Financial Instruments and Exchange Act of Japan (Act No. 25 of 1948, as amended), or the FIEA.
The securities may not be offered or sold, directly or indirectly, in Japan or to or for the benefit of any resident of Japan (including
any person resident in Japan or any corporation or other entity organized under the laws of Japan) or to others for reoffering or resale,
directly or indirectly, in Japan or to or for the benefit of any resident of Japan, except pursuant to an exemption from the registration
requirements of the FIEA and otherwise in compliance with any relevant laws and regulations of Japan.
Dubai International
Financial Centre
This prospectus relates
to an “Exempt Offer” in accordance with the Offered Securities Rules of the Dubai Financial Services Authority, or the DFSA.
This prospectus is intended for distribution only to persons of a type specified in the Offered Securities Rules of the DFSA. It must
not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection
with Exempt Offers. The DFSA has not approved this prospectus nor taken steps to verify the information set forth herein and has no responsibility
for the prospectus. Our Securities to which this prospectus relates may be illiquid and/or subject to restrictions on their resale. Prospective
purchasers of our Securities should conduct their own due diligence on such securities. If you do not understand the contents of this
prospectus, you should consult an authorized financial advisor.
Switzerland
Our Securities may not
be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange, or the SIX, or on any other stock exchange or regulated
trading facility in Switzerland. This document does not constitute a prospectus within the meaning of, and has been prepared without regard
to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure
standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated
trading facility in Switzerland. Neither this document nor any other offering or marketing material relating to our Securities or this
offering may be publicly distributed or otherwise made publicly available in Switzerland.
Neither this document
nor any other offering or marketing material relating to this offering, our company or our Securities have been or will be filed with
or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of our Securities will
not be supervised by, the Swiss Financial Market Supervisory Authority and the offer of our Securities have not been and will not be authorized
under the Swiss Federal Act on Collective Investment Schemes, or the CISA. The investor protection afforded to acquirers of interests
in collective investment schemes under the CISA does not extend to acquirers of our Securities.
Australia
No placement document,
prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities and Investments Commission,
or ASIC, in relation to this offering. This prospectus does not constitute a prospectus, product disclosure statement or other disclosure
document under the Corporations Act 2001, or the “Corporations Act”, and does not purport to include the information required
for a prospectus, product disclosure statement or other disclosure document under the Corporations Act.
Any offer in Australia
of our Securities may only be made to persons, or “Exempt Investors”, who are “sophisticated investors” (within
the meaning of section 708(8) of the Corporations Act), “professional investors” (within the meaning of section 708(11) of
the Corporations Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it is lawful
to offer our Securities without disclosure to investors under Chapter 6D of the Corporations Act.
Our Securities applied
for by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the date of allotment
under this offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act would not be required
pursuant to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant to a disclosure document
which complies with Chapter 6D of the Corporations Act. Any person acquiring our Securities must observe such Australian on-sale restrictions.
This prospectus contains
general information only and does not take account of the investment objectives, financial situation, or particular needs of any particular
person. It does not contain any securities recommendations or financial product advice. Before making an investment decision, investors
need to consider whether the information in this prospectus is appropriate to their needs, objectives, and circumstances, and, if necessary,
seek expert advice on those matters.
We have not engaged counsel
outside of the United States to review any other country’s securities laws and therefore, notwithstanding the above, neither we
nor the placement agent can assure you that the summary of the laws above are accurate as of the date of this prospectus.
LEGAL MATTERS
Blank Rome LLP, New
York, New York, will pass upon the validity of the shares of Common Stock offered by this prospectus and certain other legal matters.
Lucosky Brookman LLP, is acting as counsel to the Placement Agent.
EXPERTS
The consolidated balance
sheets of Virpax Pharmaceuticals, Inc. as of December 31, 2023 and 2022, and the related consolidated statements of operations, changes
in stockholders’ equity, and cash flows for each of the years then ended, have been audited by EisnerAmper LLP, independent registered
public accounting firm, as stated in their report which is incorporated herein by reference, which report includes an explanatory paragraph
about the existence of substantial doubt concerning the Company’s ability to continue as a going concern. Such financial statements
have been incorporated herein by reference in reliance on the report of such firm given upon their authority as experts in accounting
and auditing.
WHERE YOU CAN FIND
MORE INFORMATION
We have filed with the
Securities and Exchange Commission (the “SEC”) a registration statement on Form S-1 under the Securities Act with respect
to the Securities offered hereby. This prospectus, which constitutes a part of the registration statement, does not contain all of the
information set forth in the registration statement or the exhibits and schedules filed therewith. For further information about us and
the Securities offered hereby, we refer you to the registration statement and the exhibits and schedules filed thereto. Statements contained
in this prospectus regarding the contents of any contract or any other document that is filed as an exhibit to the registration statement
are not necessarily complete, and each such statement is qualified in all respects by reference to the full text of such contract or other
document filed as an exhibit to the registration statement. The SEC also maintains an Internet website that contains reports, proxy statements
and other information about registrants, like us, that file electronically with the SEC. The address of that site is www.sec.gov.
We are required to file periodic reports, proxy
statements, and other information with the SEC pursuant to the Exchange Act. These reports, proxy statements, and other information will
be available on the website of the SEC referred to above.
We also maintain a website at www.virpaxpharma.com,
through which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with,
or furnished to, the SEC. Information contained on or accessed through our website is not a part of this prospectus and the inclusion
of our website address in this prospectus is an inactive textual reference only.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
information from other documents that we file with it, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus
supersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus.
We incorporate by reference into this prospectus
and the registration statement of which this prospectus is a part the information or documents listed below that we have filed with the
SEC (Commission File No. 001-40064):
|
● |
Our Annual Report on Form 10-K for the fiscal December 31, 2023 (the “Annual Report”) with the SEC on March 26, 2024; |
|
|
|
|
● |
Our Quarterly Report on Form 10-Q for the three months ended March 31, 2024 filed with the SEC on May 13, 2024; |
| ● | Our
Quarterly Report on Form
10-Q for the three and six months ended June 30, 2024 filed with the SEC on August 12,
2024; |
|
● |
Our
Current Reports on Form 8-K filed with the SEC on March
1, 2024, March 18,
2024, April 3, 2024, April
30, 2024, May 2, 2024, May
17, 2024, July 3, 2024, July
8, 2024, July 10, 2024, July
15, 2024, July 24, 2024,
July
26, 2024 and July 30,
2024; |
|
|
|
|
● |
Our
Definitive Proxy Statement on Schedule 14A filed with the SEC on June 12, 2024 and additional materials filed with the SEC on July
8, 2024; and |
|
|
|
|
● |
The description of our Common Stock is set forth in our registration statement on Form 8-A filed with the SEC on filed on February 11, 2021, as updated by the description of our Common Stock filed as Exhibit 4.4 to our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the SEC on March 26, 2024, including any amendments or reports filed for the purpose of updating such description. |
We also incorporate by reference any future filings
(other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such
items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, including those made (i) on or after the date of the initial filing of the registration statement of which this prospectus
forms a part and prior to effectiveness of such registration statement, and (ii) on or after the date of this prospectus but prior to
the termination of the offering (i.e., until the earlier of the date on which all of the securities registered hereunder have been sold
or the registration statement of which this prospectus forms a part has been withdrawn). Information in such future filings updates and
supplements the information provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify
and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein
by reference to the extent that statements in the later filed document modify or replace such earlier statements.
We will furnish without charge to each person,
including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents
incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated
by reference into such documents. You should direct any requests for documents to:
Virpax Pharmaceuticals, Inc.
1055 Westlakes Drive, Suite 300
Berwyn, Pennsylvania 19312
Telephone (610) 727-4597
Attention: Corporate Secretary
You may also access these documents, free of charge,
on the SEC’s website at www.sec.gov or on our website at https://virpaxpharma.com/investors/sec-filings.
The information contained in, or that can be accessed through, our website is not incorporated by reference in, and is not part of, this
prospectus or any accompanying prospectus supplement.
In accordance with Rule 412 of the Securities
Act, any statement contained in a document incorporated by reference herein shall be deemed modified or superseded to the extent that
a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
You should rely only on information contained
in, or incorporated by reference into, this prospectus and any prospectus supplement. We have not authorized anyone to provide you with
information different from that contained in this prospectus or incorporated by reference into this prospectus. We are not making offers
to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such an offer or solicitation.
6,422,018 Shares
of Common Stock
Up to 6,422,018 Pre-Funded Warrants to Purchase 6,422,018 Shares of Common Stock
Up to 6,422,018 Shares of Common Stock Underlying such Pre-Funded Warrants
![](https://www.sec.gov/Archives/edgar/data/1708331/000121390024067945/image_004.jpg)
VIRPAX PHARMACEUTICALS, INC.
PROSPECTUS
Sole Placement Agent
RBW Capital Partners
LLC
Securities offered through Dominari Securities
LLC, a broker-dealer registered with the Securities and
Exchange Commission and a member of the Financial Industry Regulatory Authority,
Inc. (FINRA)
,
2024
PART II — INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the expenses in
connection with this registration statement. All of such expenses are estimates, other than the filing fees payable to the Securities
and Exchange Commission and to FINRA.
| |
Amount
to be paid | |
SEC registration fee | |
$ | 1,034 | |
FINRA filing fee | |
$ | 1,550 | |
Accounting fees and expenses | |
$ | 50,000 | |
Legal fees and expenses | |
$ | 100,000 | |
Miscellaneous expenses | |
$ | 10,016 | |
Total | |
$ | 162,600 | |
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware
General Corporation Law (the “DGCL”) empowers a corporation to indemnify its directors and officers and to purchase insurance
with respect to liability arising out of their capacity or status as directors and officers, provided that the person acted in good faith
and in a manner the person reasonably believed to be in our best interests, and, with respect to any criminal action, had no reasonable
cause to believe the person’s actions were unlawful. The DGCL further provides that the indemnification permitted thereunder shall
not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws,
any agreement, a vote of stockholders or otherwise.
Section 102(b)(7) of
the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director or officer of
the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty
as a director or officer, except (i) for any breach of the director’s or officer’s duty of loyalty to the corporation
or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) a director for payments of unlawful dividends or unlawful stock repurchases or redemptions; (iv) for any transaction
from which the director or officer derived an improper personal benefit; or (v) an officer in any action by or in the right of the corporation.
Our amended and restated bylaws provides that
we will indemnify our directors and executive officers to the fullest extent permitted by law, and may indemnify other officers, employees
and other agents. Our amended and restated bylaws also provide that we are obligated to advance expenses incurred by a director or executive
officer in advance of the final disposition of any action or proceeding. In addition, as permitted by Delaware law, our amended and restated
certificate of incorporation includes provisions that eliminate the personal liability of our directors and officers for monetary damages
resulting from breaches of certain fiduciary duties as a director or officer, as applicable, except to the extent such an exemption from
liability thereof is not permitted under the DGCL.
We have entered into indemnification agreements
with each of our directors and executive officers. These agreements will require us to indemnify these individuals to the fullest extent
permitted under Delaware law against liabilities that may arise by reason of their service to us and to advance expenses incurred as a
result of any proceeding against them as to which they could be indemnified.
The Registrant has an insurance policy in place
that covers its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or
otherwise.
Item 15. Recent Sales of Unregistered Securities
Except as set forth below, the Company has not issued unregistered
securities to any person within the last three years.
On July 5, 2024, the
Company entered into a Securities Purchase Agreement (the “Purchase Agreement”), with an institutional investor (the “Investor”)
pursuant to which, on July 5, 2024, the Company issued to the Investor a senior secured promissory note in the principal amount of $2.5
million (the “Secured Note”) for $2.5 million (the “Subscription Amount”). The issuance was exempt from registration
pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended, and/or Regulation D promulgated thereunder.
Item 16. Exhibits
The exhibits to this registration statement are
listed in the Exhibit Index to this registration statement, which immediately precedes the Signature Page and which Exhibit Index is hereby
incorporated by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
i. |
to include any prospectus required by Section 10(a)(3) of the Securities Act; |
|
ii. |
to reflect in the prospectus any acts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement (notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement); and |
|
iii. |
to include any material information
with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information
in this registration statement;
provided, however, that subparagraphs
(i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those subparagraphs is contained
in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of the registration statement. |
(2) |
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) |
To remove from registration, by means of a post-effective amendment, any of the securities being registered which remain unsold at the termination of the offering. |
(4) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(5) |
That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to
such purchaser: |
|
i. |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424 (§ 230.424 of this chapter); |
|
ii. |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
|
iii. |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
|
iv. |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a Registrant of expenses incurred or paid by a director, officer or controlling person of a Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, that Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
(7) |
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
|
|
(8) |
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(9) |
For purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
EXHIBIT INDEX
The exhibits listed in the accompanying Exhibit
Index are filed or incorporated by reference as part of this registration statement.
Exhibit No. |
|
Description of Document |
1.1** |
|
Form
of Placement Agency Agreement |
3.1 |
|
Amended and Restated Certificate of Incorporation of Virpax Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K (File No. 001-40064) filed on March 31, 2021). |
3.2 |
|
Amended and Restated Bylaws of Virpax Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.2 to the Company’s Annual Report on Form 10-K (File No. 001-40064) filed with the SEC on March 31, 2021). |
3.3 |
|
Amendment to By-Laws dated June 5, 2023 (incorporated by reference to Exhibit 3.1 to Company’s Current Report on Form 8-K (File No. 001-40064) filed with the SEC on June 7, 2023). |
3.4 |
|
Certificate of Amendment to the Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K (File No. 001-40064) filed with the SEC on March 1, 2024) |
4.1 |
|
Specimen Certificate representing shares of Common Stock of Virpax Pharmaceuticals, Inc. (incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on October 9, 2020). |
4.2 |
|
Form of Consultant Warrant (incorporated by reference to Exhibit 4.3 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on October 9, 2020). |
4.3 |
|
Form of Underwriter’s Warrant (incorporated by reference to Exhibit 4.2 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the SEC on February 2, 2021). |
4.4 |
|
Form of Series A-1 Warrants (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K (File No. 001-40064) filed with the SEC on May 17, 2024) |
4.5 |
|
Form of Series A-2 Warrant (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K (File No. 001-40064) filed with the SEC on May 17, 2024) |
4.6 |
|
Form of Secured Note (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K (File No. 001-40064) filed with the SEC on July 8, 2024) |
4.7** |
|
Form
of Pre-Funded Warrant for this Offering |
5.1** |
|
Opinion
of Blank Rome LLP |
10.1† |
|
Virpax Pharmaceuticals, Inc. 2017 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on October 9, 2020) † |
10.2† |
|
Form of Nonqualified Stock Option Award under 2017 Equity Incentive Plan (incorporated by reference to Exhibit 10.3 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on October 9, 2020).† |
10.3† |
|
Form of Incentive Stock Option Award under 2017 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on October 9, 2020) † |
10.4† |
|
Employment Agreement by and between Virpax Pharmaceuticals, Inc. and Anthony Mack, dated as of September 18, 2018 (incorporated by reference to Exhibit 10.5 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on October 9, 2020) † |
10.5† |
|
Consulting Agreement by and between Virpax Pharmaceuticals, Inc. and Gerald Bruce, dated as of March 11, 2020 (incorporated by reference to Exhibit 10.6 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on October 9, 2020).† |
10.6 |
|
Form of Indemnification Agreement entered into by Virpax Pharmaceuticals, Inc. with its Officers and Directors (incorporated by reference to Exhibit 10.1 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the SEC on November 20, 2020). |
10.7# |
|
License
Agreement by and between MedPharm Limited and Virpax Pharmaceuticals, Inc., dated as of June 6, 2017 (incorporated by reference to
Exhibit 10.7 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the SEC on November 20, 2020) |
10.8# |
|
First
Amendment to the License Agreement by and between MedPharm Limited and Virpax Pharmaceuticals, Inc., dated as of September 2, 2017
(incorporated by reference to Exhibit 10.8 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the
SEC on November 20, 2020) |
10.9# |
|
Second
Amendment to the License Agreement by and between MedPharm Limited and Virpax Pharmaceuticals, Inc., dated as of October 31, 2017
(incorporated by reference to Exhibit 10.9 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the
SEC on November 20, 2020) |
10.10# |
|
Research
and Option Agreement by and between MedPharm Limited and Virpax Pharmaceuticals, Inc., dated as of April 11, 2017 (incorporated by
reference to Exhibit 10.10 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the SEC on November
20, 2020). |
10.11# |
|
First
Amendment to the Research and Option Agreement by and between MedPharm Limited and Virpax Pharmaceuticals, Inc., dated as of May
30, 2018 (incorporated by reference to Exhibit 10.11 of the Company’s Registration Statement on Form S-1/A (333-249417) filed
with the SEC on November 20, 2020). |
10.12# |
|
License
and Sublicense Agreement by and between LipoCureRx, Ltd. and Virpax Pharmaceuticals, Inc., dated as of March 19, 2018 (incorporated
by reference to Exhibit 10.12 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the SEC on November
20, 2020). |
10.13# |
|
Collaboration
and License Agreement by and between Nanomerics Ltd. and Virpax Pharmaceuticals, Inc., dated as of April 11, 2019 (incorporated by
reference to Exhibit 10.13 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the SEC on November
20, 2020). |
10.14# |
|
Amendment
to the Collaboration and License Agreement by and between Nanomerics Ltd. and Virpax Pharmaceuticals, Inc., dated as of December
30, 2019 (incorporated by reference to Exhibit 10.14 of the Company’s Registration Statement on Form S-1/A (333-249417) filed
with the SEC on November 20, 2020). |
10.15# |
|
Collaboration
and License Agreement between Nanomerics Ltd. and Virpax Pharmaceuticals, Inc., dated August 7, 2020 (incorporated by reference to
Exhibit 10.17 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the SEC on February 2, 2021). |
10.16 |
|
Paycheck Protection Program Term Note, dated May 4, 2020, between Virpax Pharmaceuticals, Inc. and PNC Bank, National Association. (incorporated by reference to Exhibit 10.26 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on February 2, 2021). |
10.17 |
|
Cooperative Research and Development Agreement, dated August 25, 2020, between the U.S. Department of Health and Human Services, as represented by National Center for Advancing Translational Sciences an Institute or Center of the National Institutes of Health and Virpax Pharmaceuticals, Inc. (incorporated by reference to Exhibit 10.27 of the Company’s Registration Statement on Form S-1 (333-249417) filed with the SEC on February 2, 2021). |
10.18 |
|
Amendment No. 1 to the Collaboration and License Agreement between Nanomerics Ltd. and Virpax Pharmaceuticals, Inc., dated as of December 31, 2020 (incorporated by reference to Exhibit 10.31 of the Company’s Registration Statement on Form S-1/A (333-249417) filed with the SEC on February 2, 2021). |
10.19† |
|
Employment
Agreement, dated as of April 7, 2021, by and between Christopher M. Chipman and Virpax Pharmaceuticals, Inc. (incorporated by reference
to Exhibit 10.1 of the Company’s current report on Form 8-K (File No. 001-40064) filed with the SEC on April 13, 2021). |
10.20† |
|
Employment
Agreement, dated as of April 15, 2021, by and between Jeffrey Gudin, MD and Virpax Pharmaceuticals, Inc. (incorporated by reference
to Exhibit 10.1 of the Company’s current report on Form 8-K (File No. 001-40064) filed with the SEC on April 19, 2021). |
10.21 |
|
Amendment to the Collaboration and License Agreement dated April 11, 2019, as amended, between Nanomerics Ltd. and Virpax Pharmaceuticals, Inc., dated April 6, 2021 (incorporated by reference to Exhibit 10.3 of the Company’s quarterly report on Form 10-Q (File No. 001-40064) filed with the SEC on August 10, 2021). |
10.22 |
|
Amendment to the Collaboration and License Agreement dated April 11, 2019, as amended, between Nanomerics Ltd. and Virpax Pharmaceuticals Inc., dated May 5, 2021 (incorporated by reference to Exhibit 10.4 of the Company’s quarterly report on Form 10-Q (File No. 001-40064) filed with the SEC on August 10, 2021). |
10.23† |
|
Amendment
No. 1 to the Amended and Restated Virpax Pharmaceuticals, Inc. 2017 Equity Incentive Plan (incorporated by reference to Exhibit 10.5
of the Company’s Quarterly Report on Form 10-Q (File No. 001-40064) filed with the SEC on August 10, 2021). |
10.24 |
|
Agreement for Rendering of Research Services between LipoCureRx, Ltd. and Virpax Pharmaceuticals, Inc., dated June 29, 2021 (incorporated by reference to Exhibit 10.16 of the Company’s Registration Statement on Form S-1 (File No. 333-259421) filed with the SEC on September 9, 2021). |
10.25† |
|
Virpax
Pharmaceuticals, Inc. 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File
No. 001-40064) filed with the SEC on July 25, 2022). |
10.26† |
|
Virpax
Pharmaceuticals, Inc. Form of Nonqualified Stock Option Grant Agreement (incorporated by reference to Exhibit 10.2 to the Current
Report on Form 8-K (File No. 001-40064) filed with the SEC on July 25, 2022). |
10.27† |
|
Virpax
Pharmaceuticals, Inc. Form of Incentive Stock Option Grant Agreement (incorporated by reference to Exhibit 10.3 to the Current Report
on Form 8-K (File No. 001-40064) filed with the SEC on July 25, 2022). |
10.28† |
|
Virpax
Pharmaceuticals, Inc. Form of Restricted Stock Award Agreement (incorporated by reference to Exhibit 10.4 to the Current Report on
Form 8-K (File No. 001-40064) filed with the SEC on July 25, 2022). |
10.29† |
|
Virpax
Pharmaceuticals, Inc. Form of Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.5 to the Current Report
on Form 8-K (File No. 001-40064) filed with the SEC on July 25, 2022). |
10.30# |
|
Amended
and Restated Collaboration and License Agreement between Nanomerics Ltd. and Virpax Pharmaceuticals, Inc., dated as of March 9, 2022
(incorporated by reference to Exhibit 10.26 of the Annual Report on Form 10-K (File No. 001-40064) filed with the SEC on March 22,
2023). |
10.31† |
|
Amendment
No. 1, dated March 29, 2022, to the Employment Agreement by and between Virpax Pharmaceuticals, Inc. and Anthony Mack, dated September
18, 2017 (incorporated by reference to Exhibit 10.7 of the Company’s Annual Report on Form 10-K (File No. 001-40064) filed
with the SEC on March 22, 2023) |
10.32† |
|
Amendment
No. 1, dated March 29, 2022, to the Employment Agreement by and between Virpax Pharmaceuticals, Inc. and Jeffrey Gudin, MD, dated
April 15, 2021 (incorporated by reference to Exhibit 10.11 of the Company’s annual report on Form 10-K (File No. 001-40064)
filed with the SEC on March 22, 2023) |
10.33† |
|
Employment
Agreement, dated June 20, 2023, by and between Virpax Pharmaceuticals, Inc. and Vinay Shah (incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K (File No. 001-40064) filed with the SEC on June 21, 2023). |
10.34† |
|
Separation
Agreement, dated June 18, 2023, by and between Virpax Pharmaceuticals, Inc. and Christopher Chipman incorporated by reference to
Exhibit 10.2 to the Current Report on Form 8-K (File No. 001-40064) filed with the SEC on June 21, 2023). |
10.35† |
|
Amendment
No. 2 to Employment Agreement, dated August 15, 2023, by and between Virpax Pharmaceuticals, Inc. and Anthony Mack (incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-40064) filed with the SEC on August 16, 2023). |
10.36† |
|
Employment
Agreement, dated December 6, 2023, by and between Virpax Pharmaceuticals, Inc. and Gerald Bruce (incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K (File No. 001-40064) filed with the SEC on December 7, 2023). |
10.37 |
|
Settlement
Agreement and Mutual Release between Virpax Pharmaceuticals, Inc. and Sorrento Therapeutics, Inc. and Scilex Pharmaceuticals Inc.
(incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K (File No. 001-40064) filed with the
SEC on March 1, 2024) |
10.38† |
|
Employment
Agreement, dated April 7, 2021, by and between Virpax Pharmaceuticals, Inc. and Sheila Mathias (incorporated by reference to Exhibit
10.38 of the Company’s Annual Report on Form 10-K (File No. 001-40064) filed with the SEC on March 26, 2024) |
10.39 |
|
Indemnification
Agreement, dated March 25, 2024, by and between Virpax Pharmaceuticals, Inc. and Vinay Shah (incorporated by reference to Exhibit
10.39 of the Company’s Annual Report on Form 10-K (File No. 001-40064) filed with the SEC on March 26, 2024) |
10.40** |
|
Form
of Securities Purchase Agreement to be entered into in this Offering |
10.41 |
|
Securities
Purchase Agreement, dated July 5, 2024 by and between Virpax Pharmaceuticals, Inc. and Corbo Capital Inc. (incorporated by reference
to Exhibit 10.1 of the Company’s Current Report on Form 8-K (File No. 001-40064) filed with the SEC on July 8, 2024) |
10.42 |
|
Security
Agreement, dated July 5, 2024 by and between Virpax Pharmaceuticals, Inc. and Corbo Capital Inc. (incorporated by reference to Exhibit
10.2 of the Company’s Current Report on Form 8-K (File No. 001-40064) filed with the SEC on July 8, 2024) |
10.43† |
|
Amendment
to the Virpax Pharmaceuticals 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Current
Report on Form 8-K (File No. 001-40064) filed with the SEC on July 30, 2024) |
10.44† |
|
Amendment
to the Virpax Pharmaceuticals 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 of the Company’s Current
Report on Form 8-K (File No. 001-40064) filed with the SEC on July 30, 2024) |
21.1 |
|
List
of Subsidiaries (incorporated by reference to Exhibit 21.1 of the Company’s Annual Report on Form 10-K (File No. 001-40064)
filed with the SEC on March 26, 2024). |
23.1** |
|
Consent
of EisnerAmper LLP |
23.2** |
|
Consent
of Blank Rome LLP (contained in Exhibit 5.1) |
24.1* |
|
Power of Attorney (reference is made to the signature page hereto) |
107* |
|
Filing Fee Table |
* |
Previously filed |
|
|
** |
Filed herewith |
|
|
† |
Denotes management compensation plan or contract. |
|
|
# |
Certain portions of this exhibit have been omitted because the omitted information is (i) not material and (ii) would likely cause competitive harm to the Company if publicly disclosed. |
SIGNATURES
Pursuant to the requirements of the Securities
Act, the registrant has duly caused this amendment no. 1 to registration statement on Form S-1 to be signed on its behalf by the undersigned,
thereunto duly authorized, in Berwyn, Pennsylvania, on August 13, 2024.
|
VIRPAX PHARMACEUTICALS, INC. |
|
|
|
By: |
/s/ Gerald Bruce |
|
|
Name: |
Gerald Bruce |
|
|
Title: |
Chief Executive Officer |
Pursuant to the requirements of the Securities
Act, this to amendment no. 1 to registration statement on Form S-1 has been signed below by the following persons in the capacities and
on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Gerald Bruce |
|
Chief
Executive Officer (Principal Executive |
|
August
13, 2024 |
Gerald
Bruce |
|
Officer) and Director |
|
|
|
|
|
|
|
/s/
Vinay Shah |
|
Chief
Financial Officer (Principal Financial Officer |
|
August
13, 2024 |
Vinay
Shah |
|
and Principal Accounting Officer) |
|
|
|
|
|
|
|
* |
|
Chairman
of the Board of Directors |
|
August
13, 2024 |
Eric
Floyd, PhD |
|
|
|
|
|
|
|
|
|
* |
|
Director
|
|
August
13, 2024 |
Vanila
M. Singh |
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* |
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Director
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August
13, 2024 |
Judy
Su |
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* |
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Director |
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August
13, 2024 |
Jatinder
Dhaliwal |
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* |
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Director |
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August
13, 2024 |
Katharyn
Field |
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* |
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Director |
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August
13, 2024 |
Gary
Herman |
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*By: |
/s/
Gerald Bruce |
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Gerald Bruce, Attorney-in
fact |
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II-7
Exhibit 1.1
Placement
Agency Agreement
August ____, 2024
Virpax Pharmaceuticals, Inc.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Attn: Chief Executive Officer
Dear Mr. Gerald Bruce:
This letter (the “Agreement”) constitutes
the agreement between RBW Capital Partners LLC acting through Dominari Securities LLC (the “Placement Agent”) and Virpax
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), that the Placement Agent shall serve as the exclusive
placement agent for the Company, on a reasonable “best efforts” basis, in connection with the proposed offering (the “Placement”)
of shares (the “Shares”) of common stock of the Company, par value $0.00001 per share (the “Common Stock”),
and/or pre-funded warrants to purchase Shares (the “Pre-Funded Warrants” and together with the Shares, the “Securities”).
The Securities actually placed by the Placement Agent are referred to herein as the “Placement Securities.” The Shares,
Pre-Funded Warrants, and the shares of Common Stock underlying the Pre-Funded Warrants will be offered and sold under the Company’s
registration statement on Form S-1 (File No. 333-281080). The documents executed and delivered by the Company and the Purchasers (as defined
below) in connection with the Placement, including, without limitation, a securities purchase agreement (the “Purchase Agreement”),
are collectively referred to herein as the “Transaction Documents.”
The terms of the Placement are to be mutually agreed
upon by the Company and purchasers signatories to the Purchase Agreement (each, a “Purchaser” and collectively, the
“Purchasers”), and nothing herein confers upon the Placement Agent the power or authority to bind the Company or any
Purchaser, or constitutes an obligation for the Company to issue any Placement Securities or complete the Placement. The Company expressly
acknowledges and agrees that the Placement Agent’s obligations hereunder are on a best efforts basis only and that the execution
of this Agreement does not constitute a commitment by the Placement Agent to purchase the Placement Securities and does not ensure the
successful placement of the Placement Securities, or any portion thereof, or the success of the Placement Agent with respect to securing
any other financing on behalf of the Company. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers
on its behalf in connection with the Placement, subject to the approval of the Company, which shall not be unreasonably withheld. Certain
affiliates of the Placement Agent may participate in the Placement by purchasing some of the Placement Securities. The sale of Placement
Securities to any Purchaser will be evidenced by a Purchase Agreement between the Company and such Purchaser in a form reasonably acceptable
to the Company and the Purchaser. Capitalized terms that are not otherwise defined herein have the meanings given to such terms in the
Purchase Agreement. Prior to the signing of any Purchase Agreement, officers of the Company will be available to answer inquiries from
prospective Purchasers.
Section 1. Representations and Warranties
of the Company; Covenants of the Company.
(a) Representations of the
Company. With respect to the Placement Securities, each of the representations and warranties (together with any related disclosure
schedules thereto) and covenants made by the Company to the Purchasers in the Purchase Agreement in connection with the Placement, is
hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, as of the date of this Agreement
and as of the date of closing of the Placement (the “Closing Date”), hereby made to, and in favor of, the Placement Agent.
In addition to the foregoing, the Company represents and warrants that there are no affiliations with any FINRA member firm participating
in the Placement among the Company’s officers, directors or, to the knowledge of the Company, any five percent (5.0%) or greater
securityholder of the Company.
(b) Covenants of the Company. The Company covenants and agrees
to continue to retain (i) an independent public accounting firm registered with the Public Company Accounting Oversight Board (“PCAOB”)
for a period of at least three (3) years after the Closing Date and (ii) a competent transfer agent with respect to the Placement Securities
for a period of three (3) years after the Closing Date. In addition, from the date hereof until thirty (30) days after the Closing Date,
subject to certain exceptions provided for in the Purchase Agreement, neither the Company nor any Subsidiary shall issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents, except that
such restriction shall not apply with respect to an Exempt Issuance (as defined in the Purchase Agreement). In addition, from the date
hereof until thirty (30) days after the Closing Date, neither the Company nor any Subsidiary shall effect or enter into an agreement
to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents (as defined in
the Purchase Agreement) (or a combination of units thereof) involving a Variable Rate Transaction (as defined in the Purchase Agreement).
Section 2. Representations of the Placement
Agent. The Placement Agent represents and warrants that it (i) is a member in good standing of the Financial Industry Regulatory Authority
(“FINRA”), (ii) is registered as a broker/dealer under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and the securities laws of each state in which an offer or sale of Placement Securities is made (unless exempt from the
respective state’s broker-dealer registration requirements), (iii) is licensed as a broker/dealer under the laws of the United States
of America, applicable to the offers and sales of the Placement Securities by the Placement Agent, (iv) is and will be a corporate body
validly existing under the laws of its place of incorporation, and (v) has full power and authority to enter into and perform its obligations
under this Agreement. The Placement Agent will immediately notify the Company in writing of any change in its status with respect to subsections
(i) through (v) above. The Placement Agent covenants that it will use its reasonable best efforts to conduct the Placement hereunder in
compliance with the provisions of this Agreement and the requirements of applicable law.
Section 3. Compensation. In consideration
of the services to be provided for hereunder, the Company shall pay to the Placement Agent and/or its respective designees a cash fee
of 2.5% of the aggregate gross proceeds raised from the sale of the Placement Securities (the “Cash Fee”). The Placement
Agent reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination
is made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of that permitted by FINRA Rules or
that the terms thereof require adjustment.
Section 4. Tail. Whether or not the
Placement Agent consummates the Placement as contemplated by this Agreement, the Placement Agent shall be entitled to a cash fee equal
to two and a half percent (2.5%) of the gross proceeds received by the Company from the sale of the Securities to any investor actually
introduced by Placement Agent to the Company during the period from July 19, 2024, to the earlier of (i) September 2, 2024 or (ii) the
Closing Date (the “Tail Financing”), and such Tail Financing is consummated at any time during the six (6) month period
following the expiration of the Engagement Period, provided that such financing is by a party actually introduced to the Company in an
offering in which the Company has direct knowledge of such party’s participation. The Placement Agent will provide the Company a
list of all parties introduced to the Company.
Section 5. Expenses. The Company agrees
to pay all costs, fees and expenses incurred by the Company in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including, without limitation: (i) all expenses incident to the issuance, delivery and qualification
of the Placement Securities (including all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent
of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Placement Securities;
(iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors; (v)
all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement
(including financial statements, exhibits, schedules, consents and certificates of experts), the Base Prospectus and each Prospectus Supplement,
and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, reasonable attorneys’ fees and expenses incurred
by the Company in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or
any part of the Placement Securities for offer and sale under the state securities or blue sky laws or the securities laws of any other
country; (vii) the fees and expenses associated with including the Placement Securities on the Trading Market; and (viii) reasonable legal
fees and disbursements for counsel to the Placement Agent, in an aggregate amount of up to $60,000, plus the costs associated with the
use of a third-party electronic road show service (such as NetRoadshow); provided, however, that such amount in no way limits or impairs
the indemnification and contribution provisions of this Agreement.
Section 6. Lock-Up.
(a) The Company, on behalf of itself and any successor entity, agrees
that, without the prior written consent of the Placement Agent, it will not, for a period of 30 days after the date of this Agreement
(the “Lock-Up Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of
capital stock of the Company; (ii) file or caused to be filed any registration statement with the Commission relating to the offering
of any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital
stock of the Company, other than the Pricing Prospectus, a Prospectus Supplement or filing a registration statement on Form S-8 in connection
with any employee benefit plan or amendments or supplements to registration statements; (iii) complete any offering of debt securities
of the Company, other than entering into a line of credit with a traditional bank or (iv) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of capital stock of the Company, whether any
such transaction described in clause (i), (ii), (iii) or (iv) above is to be settled by delivery of shares of capital stock of the Company
or such other securities, in cash or otherwise.
(b) Schedule I hereto contains
a complete and accurate list of the Company’s directors and officers (collectively, the “Lock-Up Parties”). The
Company has requested that each of the Lock-Up Parties deliver to the Placement Agent an executed Lock-Up Agreement substantially in the
form of Exhibit A hereto (each, a “Lock-Up Agreement”), on or prior to the date of this Agreement. The Placement
Agent may, in its sole discretion, agree to waive and release any director or officer of the Company from the restrictions of the Lock-Up
Agreement to which one or more of them is party. In such case, the Company agrees to announce the impending release or waiver by a press
release substantially in the form of Exhibit B hereto through a major news service at least two (2) Business Days before the effective
date of the release or waiver.
Section 7. Indemnification.
(a) To the extent permitted by law, with respect to the Placement Securities,
the Company shall indemnify the Placement Agent and its affiliates, stockholders, directors, officers, employees, members and controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) against all losses, claims, damages,
expenses and liabilities, as the same are incurred (including reasonable actual and documented fees and expenses of counsel), caused by,
or arising out of or in connection with, any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading (other than untrue statements
or alleged untrue statements in, or omissions or alleged omissions from, information relating to an Indemnified Person furnished in writing
by or on behalf of such Indemnified Person expressly for use in the Incorporated Documents). Notwithstanding anything set forth herein
to the contrary, the Company agrees to indemnify the Placement Agent, to the fullest extent set forth in this Section 7, against any and
all claims asserted by any or person or entity alleging that the Placement Agent was not permitted or entitled to act as a placement agent
herein, or that the Company was not permitted to hire or retain the Placement Agent herein, including but not limited to any claims arising
out of any purported right of first refusal another person or entity claims to have to act as a placement agent or any similar role with
respect to the Company or its securities.
(b) Promptly after receipt by
the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which the Placement Agent is
entitled to indemnity hereunder, the Placement Agent will immediately notify the Company in writing of such claim or of the commencement
of such action or proceeding, but failure or delay of notification to so notify the Company shall not relieve the Company from any obligation
it may have hereunder, except and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses
or materially adversely impacts the Company. If the Company so elects or is requested by the Placement Agent, the Company will assume
the defense of such action or proceeding and will employ counsel reasonably satisfactory to the Placement Agent and will pay the fees
and expenses of such counsel. Notwithstanding the preceding sentence, the Placement Agent will be entitled to employ its own counsel separate
from counsel for the Company and from any other party in such action if counsel for the Placement Agent reasonably determines that it
would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent both the Company and
the Placement Agent. In such event, the reasonable fees and disbursements of no more than one such separate counsel will be paid by the
Company, in addition to fees of local counsel. The Company will have the right to settle the claim or proceeding, provided that the Company
will not settle any such claim, action or proceeding without the prior written consent of the Placement Agent, which will not be unreasonably
withheld. The Company will not be liable for settlement of any action effected without its written consent, which may not be unreasonably
withheld, conditioned or delayed.
(c) The Company agrees to notify
the Placement Agent promptly of the assertion against it or any other person of any claim or the commencement of any action or proceeding
relating to a transaction contemplated by this Agreement.
(d) If for any reason the foregoing
indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless, then the Company shall contribute
to the amount paid or payable by the Placement Agent as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Placement Agent on the other,
but also the relative fault of the Company on the one hand and the Placement Agent on the other that resulted in such losses, claims,
damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect of losses,
claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred in defending
any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement Agent’s share of the liability
hereunder shall not be in excess of the amount of fees actually received, or to be received, by the Placement Agent under this Agreement
(excluding any amounts received as reimbursement of expenses incurred by the Placement Agent).
(e) The provisions of this Section
7 will remain in full force and effect, survive the expiration or termination of this Agreement, and be in addition to any liability that
the Company might otherwise have to any indemnified party under this Agreement, whether or not the transaction contemplated by this Agreement
is completed.
Section 8. Engagement Term. The Placement
Agent’s engagement hereunder will be until the earlier of (i) September 15, 2024, and (ii) the Closing Date (such earlier date,
the “Termination Date”), unless otherwise extended by the parties in writing; provided, however, the
Placement Agent may terminate this Agreement prior to the Termination Date if it reasonably determines that it is unsatisfied with the
results of its due diligence investigation, notwithstanding its best efforts to complete the Placement. Notwithstanding anything to the
contrary contained in this Agreement, in the event that the Placement pursuant to this Agreement shall not be carried out for any reason
whatsoever during the Term, the Company shall be obligated to pay to the Placement Agent its actual and accountable out-of-pocket expenses
related to the Placement (including the fees and disbursements of the Placement Agents’ legal counsel), up to a maximum of $30,000
and, if applicable, for electronic road show service used in connection with the Placement. The Placement Agent may not use any confidential
information concerning the Company provided by the Company for any purposes other than those contemplated under this Agreement.
Section 9. Placement Agent Information.
The Company agrees that any information or advice rendered by the Placement Agent in connection with this engagement is for the confidential
use of the Company only in their evaluation of the Placement and, except as otherwise required by law, the Company will not disclose or
otherwise refer to the advice or information in any manner without the Placement Agent’s prior written consent.
Section 10. No Fiduciary Relationship.
This Agreement does not create, and shall not be construed as creating rights enforceable by any person or entity not a party hereto,
except those entitled hereto by virtue of the indemnification provisions hereof. The Company acknowledges and agrees that the Placement
Agent is not and shall not be construed as a fiduciary of the Company and shall have no duties or liabilities to the equity holders or
the creditors of the Company or any other person by virtue of this Agreement or the retention of the Placement Agent hereunder, all of
which are hereby expressly waived.
Section 11. Closing. The obligations
of the Placement Agent, and the closing of the sale of the Placement Securities hereunder are subject to the accuracy, when made and on
the Closing Date, of the representations and warranties on the part of the Company contained herein and in the Purchase Agreement, to
the performance by the Company of its obligations hereunder and in the Purchase Agreement, and to each of the following additional terms
and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement Agent:
(a) All corporate proceedings
and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement, the Placement
Securities, and all other legal matters relating to this Agreement and the transactions contemplated hereby with respect to the Placement
Securities have been completed or resolved in a manner reasonably satisfactory in all material respects to the Placement Agent.
(b) The Placement Agent has received
from outside legal counsel to the Company such counsel’s written opinion and negative assurance letter with respect to the Placement
Securities, addressed to the Placement Agent and dated as of the Closing Date, in form and substance reasonably satisfactory to the Placement
Agent.
(c) The Placement Agent has received
customary certificates of the Company’s executive officers (the “Officer’s Certificate”) as to the accuracy
of the representations and warranties contained in the Purchase Agreement, and a certificate of the Company’s secretary (the “Secretary’s
Certificate”) certifying (i) that the Company’s organizational documents are true and complete, have not been modified
and are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Placement are in
full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company. Each of the Officer’s
Certificate and Secretary’s Certificate must be dated as of the Closing Date, and all documents referenced in the Secretary’s
Certificate must be attached thereto.
(d) The Common Stock has been
registered under the Exchange Act and listed, admitted and authorized for trading on the Trading Market or other applicable U.S. national
exchange as of the Closing Date, and the Placement Agent has received reasonably satisfactory evidence of such actions. The Company has
not taken any action designed to, or likely to have the effect of terminating the registration of the Common Stock under the Exchange
Act or delisting, or suspending from trading, the Common Stock from the Trading Market or other applicable U.S. national exchange. The
Company has not received any information suggesting that the Commission or the Trading Market or other U.S. applicable national exchange
is contemplating terminating such registration or listing.
(e) No action or proceeding before
a court of competent jurisdiction has been taken, and no statute, rule, regulation or order has been enacted, adopted or issued by any
governmental agency or body that would, as of the Closing Date, prevent the issuance or sale of the Placement Securities or materially
and adversely affect the business or operations of the Company. No injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction has been issued as of the Closing Date that would prevent the issuance or sale of the Placement
Securities or materially and adversely affect the business or operations of the Company.
(f) The Company has entered into a Purchase Agreement with certain
of the Purchasers of the Placement Securities, and such agreements are in full force and effect and contain representations, warranties
and covenants of the Company as agreed upon between the Company and the Purchasers.
(g) FINRA raised no objections
to the fairness and reasonableness of the terms and arrangements of this Agreement. If requested by the Placement Agent, the Company has
filed, or has authorized the Placement Agent’s counsel to file on the Company’s behalf, with FINRA all necessary materials
in compliance with FINRA Rule 5110 with respect to the Placement and has paid all filing fees required in connection therewith.
(h) The Placement Agent has received
an executed Lock-Up Agreement from each of the Company’s officers and directors prior to the Closing Date.
(i) On or before the Closing Date,
the Placement Agent and counsel for the Placement Agent have received such information and documents as they may reasonably require for
the purposes of enabling them to pass upon the issuance and sale of the Placement Securities as contemplated herein, or in order to evidence
the accuracy of any of the representations and warranties of the Company, or the satisfaction of any of the conditions or agreements,
herein contained.
(j) On the date hereof, the Placement
Agent shall have received, and the Company shall have caused to be delivered to the Placement Agent, a letter from EisnerAmper LLP, the
independent registered public accounting firm of the Company (the “Auditor”), addressed to the Placement Agent, dated
as of the date hereof, in form and substance satisfactory to the Placement Agent. The letter shall not disclose any change in the condition
(financial or other), earnings, operations or business of the Company, which, in the Placement Agent’s sole judgment, is material
and adverse and that makes it, in the Placement Agent’s sole judgment, impracticable or inadvisable to proceed with the Placement
of the Securities.
(k) On the Closing Date, the Placement
Agent shall have received from the Auditor a letter, dated as of the Closing Date, to the effect that the Auditor reaffirms the statements
made in the letter delivered pursuant to Section 11(j) hereof.
(l) The Company shall have prepared
and filed with the Commission a Current Report on Form 8-K with respect to the Placement, including this Agreement as an exhibit thereto.
(m) The Company shall have entered into a Purchase Agreement with certain
of the Purchasers and such agreements shall be in full force and effect and shall contain representations, warranties and covenants of
the Company as agreed between the Company and the Purchasers.
(n) On or before the date of this
Agreement, the Placement Agent shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Placement
hereunder.
(o) Prior to the Closing Date,
the Company shall have furnished to the Placement Agent such further information, certificates and documents as the Placement Agent may
reasonably request.
If any of the conditions specified
in this Section 11 have not been fulfilled when and as required by this Agreement, the Placement Agent may terminate this Agreement at
any time on or prior to the Closing Date by giving oral or written notice to the Company. Any such oral notice must be promptly confirmed
in writing.
Section 12. Governing Law. This Agreement
will be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed
entirely in such State. This Agreement may not be assigned by either party without the prior written consent of the other party. This
Agreement is binding upon, and inure to the benefit of, the parties hereto and their respective successors and permitted assigns. Any
right to trial by jury with respect to any dispute arising under this Agreement or any transaction or conduct in connection herewith is
waived. Any dispute arising under this Agreement may be brought into the courts of the State of New York or into the federal court located
in New York, New York, and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of aforesaid courts. Each party hereto irrevocably waives personal service of process,
consents to process being served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence
of delivery) to such party at the address in effect for notices to it under this Agreement, and acknowledges that such service will constitute
good and sufficient service of process and notice thereof. If either party commences an action or proceeding to enforce any provisions
of this Agreement, then the non-prevailing party in such action or proceeding shall reimburse the prevailing party for its attorney’s
fees and other costs and expenses incurred in connection with such action or proceeding.
Section 13. Entire Agreement/Miscellaneous.
This Agreement embodies the entire agreement and understanding between the parties hereto, and supersedes all prior agreements and understandings,
relating to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect,
such determination will not affect such provision in any other respect or any other provision of this Agreement, which will remain in
full force and effect. If any section, paragraph, or provision of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable. This
Agreement may not be amended or otherwise modified or waived except by an instrument in writing signed by both the Placement Agent and
the Company. The representations, warranties, agreements and covenants contained herein shall survive the Closing Date of the Placement
and delivery of the Placement Securities. This Agreement may be executed in two or more counterparts, all of which, when taken together,
will be considered one and the same agreement. This Agreement will become effective when each party hereto has received a counterpart
hereof signed by the other party. In the event that any signature is delivered by facsimile transmission or a .pdf format file, such signature
will create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or .pdf signature page were an original thereof.
Section 14. Notices. Any and all notices
or other communications or deliveries required or permitted to be provided hereunder must be in writing and will be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or communication is sent to the email address specified on
the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a Business Day, (b) the next Business Day after the date
of transmission, if such notice or communication is sent to the email address on the signature pages attached hereto on a day that is
not a Business Day or later than 6:30 p.m. (New York City time) on any Business Day, (c) the third business day following the date of
mailing, if sent by U.S. internationally recognized air courier service, or (d) upon actual receipt by the party to whom such notice
is required to be given. Such notices and communications, if sent to the Placement Agent, shall be delivered to:
RBW Capital Partners LLC
1511 Ponce De Leon, Unit 1092
San Juan, PR 00909
Attention: Philip Gaucher
Managing Partner
Email: pgaucher@rbwcap.com
and:
Dominari Securities LLC
725 Fifth Avenue, 23rd Floor
New York, NY 10022
Attention: Dr. Cosme Ordonez
Managing Director, Head of Investment
Banking
Email: cordonez@dominarisecurities.com
with a copy (which shall not constitute notice)
to:
Lucosky Brookman LLP
101 Wood Avenue South
Woodbridge, NJ 08830
(732) 495-4400
Email: slinsky@lucbro.com
and if to the Company, shall be delivered to:
Virpax Pharmaceuticals, Inc.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Attn: Gerald Bruce
Email: gbruce@virpaxpharma.com
with a copy (which shall not constitute notice)
to:
Blank Rome LLP
1271 Avenue of the Americas
New York, NY 10020
(212) 885-5000
Email: leslie.marlow@blankrome.com
Section 15. Press Announcements. The
Company agrees that the Placement Agent may, on and after the Closing Date, reference the Placement and the Placement Agent’s role
in connection therewith in the Placement Agent’s marketing materials and on its website and to place advertisements in financial
and other newspapers and journals, in each case at its own expense.
[The remainder of this page has been intentionally
left blank.]
Please confirm that the foregoing correctly sets forth
our agreement by signing and returning to the Placement Agent the enclosed copy of this Agreement.
Very truly yours,
RBW CAPITAL PARTNERS LLC |
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By: |
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Name: |
Philip Gaucher |
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Title: |
Managing Partner |
|
Address for notice:
RBW Capital Partners LLC
1511 Ponce De Leon, Unit 1092
San Juan, PR 00909
Attention: Philip Gaucher
Managing Partner
Email: pgaucher@rbwcap.com
DOMINARI SECURITIES LLC |
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By: |
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Name: |
Cosme Ordonez |
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Title: |
Managing Director, Head of Investment Banking |
|
Address for notice:
Dominari Securities LLC
725 Fifth Avenue, 23rd Floor New York, NY 10022
Attention: Dr. Cosme Ordonez
Managing Director, Head of Investment Banking
Email: cordonez@dominarisecurities.com
[Signature Page to the Placement Agency Agreement]
Accepted and Agreed to as of
the date first written above:
VIRPAX PHARMACEUTICALS, inc. |
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By: |
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Name: |
Gerald Bruce |
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Title: |
Chief Executive Officer |
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Address for notice:
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Attn: Gerald Bruce
Email: gbruce@virpaxpharma.com
[Signature Page to the Placement Agency Agreement]
Schedule I
Lock-Up Parties
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
_____, 2024
RBW Capital Partners LLC
1511 Ponce De Leon
Unit 1092
San Juan, PR 00909
Dominari Securities LLC
725 Fifth Avenue, 23rd Floor
New York, NY 10022
Ladies and Gentlemen:
The undersigned understands that RBW Capital Partners LLC (together
and with its affiliates “RBW”) and Dominari Securities LLC (“Dominari”, and together with RBW, the “Placement
Agent”), proposes to enter into a placement agency agreement (the “Placement Agency Agreement”) with Virpax
Pharmaceuticals, Inc., a company incorporated under the law of the State of Delaware (the “Company”), providing for the public
offering (the “Public Offering”) of [●] shares of common stock (the “Common Stock”), par value
$0.00001 per share, of the Company (each, a “Closing Share”) and/or pre-funded warrants to purchase Closing Shares.
To induce the Placement Agent to continue its efforts in connection
with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Placement Agent, the undersigned
will not, during the period commencing on the date hereof and ending ninety (90) days after the effective date of the Registration
Statement relating to the Public Offering, (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common
Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the
power of disposition (collectively, the “Lock-Up Securities”); (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for
or exercise any right with respect to the registration of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer,
sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement relating to any Lock-Up Securities.
Notwithstanding the foregoing, and subject to the conditions below,
the undersigned may transfer Lock-Up Securities without the prior written consent of the Placement Agent in connection with
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transactions relating to Lock-Up Securities acquired in open market transactions after the completion of the Public Offering; provided that no filing under Section 13 or Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be voluntarily made in connection with subsequent sales of Lock-Up Securities acquired in such open market transactions; |
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transfers of Lock-Up Securities as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of the undersigned (for purposes of this lock-up agreement, “family member” means any relationship by blood, marriage or adoption, not more remote than first cousin); |
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transfers of Lock-Up Securities to a charity or educational institution; |
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if the undersigned is a corporation, partnership, limited liability company or other business entity, (i) any transfers of Lock-Up Securities to another corporation, partnership or other business entity that controls, is controlled by or is under common control with the undersigned or (ii) distributions of Lock-Up Securities to members, partners, stockholders, subsidiaries or affiliates (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned; |
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if the undersigned is a trust, to a trustee or beneficiary of the trust;
provided that in the case of any transfer pursuant to the foregoing clauses (b), (c) (d) or (e), (i) any such transfer shall not
involve a disposition for value, (ii) each transferee shall sign and deliver to the Placement Agent a lock-up agreement substantially
in the form of this agreement and (iii) no filing under Section 13 or Section 16(a) of the Exchange Act or other public announcement shall
be required or shall be voluntarily made during the Lock-Up Period; |
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the receipt by the undersigned from the Company of shares of Common Stock upon the vesting of restricted stock awards or stock units or upon the exercise of options to purchase the Company’s shares of Common Stock issued under an equity incentive plan of the Company or an employment arrangement described in the Pricing Prospectus (as defined in the Placement Agency Agreement) (the “Plan Shares”) or the transfer or withholding of shares of Common Stock or any securities convertible into shares of Common Stock to the Company upon a vesting event of the Company’s securities or upon the exercise of options to purchase the Company’s securities, in each case on a “cashless” or “net exercise” basis or to cover tax obligations of the undersigned in connection with such vesting or exercise, provided that if the undersigned is required to file a report under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Lock-Up Period, the undersigned shall include a statement in such schedule or report to the effect that the purpose of such transfer was to cover tax withholding obligations of the undersigned in connection with such vesting or exercise and, provided further, that the Plan Shares shall be subject to the terms of this agreement; |
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the transfer of Lock-Up Securities pursuant to agreements described in the Pricing Prospectus under which the Company has the option to repurchase such securities or a right of first refusal with respect to the transfer of such securities, provided that if the undersigned is required to file a report under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Lock-Up Period, the undersigned shall include a statement in such schedule or report describing the purpose of the transaction; |
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the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Lock-Up Securities, provided that (i) such plan does not provide for the transfer of Lock-Up Securities during the Lock-Up Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such public announcement or filing shall include a statement to the effect that no transfer of Lock-Up Securities may be made under such plan during the Lock-Up Period; |
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the transfer of Lock-Up Securities that occurs by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, provided that the transferee agrees to sign and deliver an agreement substantially in the form of this agreement for the balance of the Lock-Up Period, and provided further, that any filing under Section 13 or Section 16(a) of the Exchange Act that is required to be made during the Lock-Up Period as a result of such transfer shall include a statement that such transfer has occurred by operation of law; and |
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the transfer of Lock-Up Securities pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of shares of Common Stock involving a change of control (as defined below) of the Company after the closing of the Public Offering and approved by the Company’s board of directors; provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Lock-Up Securities owned by the undersigned shall remain subject to the restrictions contained in this agreement. “Change of control” means the consummation of any bona fide third party tender offer, merger, amalgamation, consolidation or other similar transaction the result of which is that any “person” or “group” of persons (as defined in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d- 5 of the Exchange Act) of a majority of total voting power of the voting stock of the Company. |
The undersigned also agrees and consents to the entry
of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Lock-Up
Securities except in compliance with this lock-up agreement.
If the undersigned is an officer or director of the Company, (i) the
undersigned agrees that the foregoing restrictions shall be equally applicable to any issuer-directed or “friends and family”
securities that the undersigned may purchase in the Public Offering; (ii) the Placement Agent agrees that, at least three (3) Business
Days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Lock-Up Securities,
the Placement Agent will notify the Company of the impending release or waiver; and (iii) the Company has agreed in the Placement Agency
Agreement to announce the impending release or waiver by press release through a major news service at least two (2) Business Days before
the effective date of the release or waiver. Any release or waiver granted by the Placement Agent hereunder to any such officer or director
shall only be effective two (2) Business Days after the publication date of such press release. The provisions of this paragraph will
not apply if (a) the release or waiver is effected solely to permit a transfer of Lock-Up Securities not for consideration and (b) the
transferee has agreed in writing to be bound by the same terms described in this lock-up agreement to the extent and for the duration
that such terms remain in effect at the time of such transfer.
The undersigned understands that the Company and the Placement Agent
are relying upon this lock-up agreement in proceeding toward consummation of the Public Offering. The undersigned further understands
that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
The undersigned understands that,
if the Placement Agency Agreement is not executed by [●], 2024 or if the Placement Agency Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for and delivery of the shares of Common Stock to be sold
thereunder, then this lock-up agreement shall be void and of no further force or effect.
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Very truly yours, |
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(Name - Please Print) |
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(Signature) |
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(Name of Signatory, in the case of entities -
Please Print) |
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(Title of Signatory, in the case of entities -
Please Print) |
EXHIBIT
B
Form of Clear Market Release and Waiver
[●], 202[●]
Virpax Pharmaceuticals, Inc.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Attention: Chief Executive Officer
Re: Clear Market Release and Waiver
Ladies and Gentlemen:
Pursuant to Section 6(b) of the
Placement Agency Agreement, dated [●], 2024 (the “Placement Agency Agreement”), between Virpax Pharmaceuticals,
Inc., a company incorporated under the law of the State of Delaware (the “Company”), and RBW Capital Partners
LLC and Dominari Securities LLC (together, the “Placement Agent”), the Placement Agent hereby agrees to release
and waive the restrictions in Section 6(b) of the Placement Agency Agreement to allow the Company to sell up to [●] shares of its
common stock [solely from and including [●] to and including [●]].
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RBW CAPITAL PARTNERS LLC |
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By: |
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Name: |
Philip Gaucher |
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Title: |
Managing Partner |
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DOMINARI SECURITIES LLC |
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By: |
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Name: |
Dr. Cosme Ordonez |
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Title: |
Managing Director, Head
of Investment Banking |
B-1
Exhibit 4.7
PRE-FUNDED COMMON STOCK PURCHASE WARRANT
Virpax
Pharmaceuticals, Inc.
Warrant Shares: ______ |
Issue Date: , 2024 |
THIS PRE-FUNDED COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, __________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Virpax Pharmaceuticals,
INC., a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder,
the “Warrant Shares”) of the Company’s Common Stock. The purchase price of one share of Common Stock under this
Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement
(the “Purchase Agreement”), dated __________, 2024, among the Company and the purchasers signatory thereto.
Section 2. Exercise.
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a) |
Exercise of Warrant. Subject to the terms and conditions hereof, exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form attached hereto as Exhibit A (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is applicable and specified in the attached Notice of Exercise. The Company shall have no obligation to inquire with respect to or otherwise confirm the authenticity of the signature(s) contained on any Notice of Exercise nor the authority of the person so executing such Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within two (2) Trading Days of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof. |
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Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.00001 per Warrant Share, was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise price of $0.00001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining unpaid exercise price per share of Common Stock under this Warrant shall be $0.00001, subject to adjustment hereunder (the “Exercise Price”). |
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Cashless Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where: |
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as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(68) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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the Exercise Price of this Warrant, as adjusted hereunder; and |
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the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York
City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted on a Trading Market and if prices
for the Common Stock are then reported on OTCQB or OTCQX, as applicable, the volume weighted average price of the Common Stock for such
date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if the Common Stock is not then listed or quoted for trading
on a Trading Market or on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization
or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d)
in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith
by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted on a Trading Market
and if prices for the Common Stock are then reported on OTCQB or OTCQX, as applicable, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted
for trading on a Trading Market or on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the
fees and expenses of which shall be paid by the Company.
If Warrant Shares are issued in such a cashless exercise, the parties
acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act of 1933, as amended, the Warrant Shares shall take
on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary to this Section
2(c).
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Mechanics of Exercise. |
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Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (A) the earlier of (i) two (2) Trading Days and (ii) the number of days comprising the Standard Settlement Period, in each case after the delivery to the Company of the Notice of Exercise and (B) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”) provided that payment of the aggregate Exercise Price (other than in the instance of a cashless exercise) is received by the Company by such date. Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, provided that payment of the aggregate Exercise Price (other than in the instance of a cashless exercise) is received by the Company by such date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date. |
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Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant. |
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Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise by delivering written notice to the Company at any time prior to the delivery of such Warrant Shares (in which case any liquidated damages payable under Section 2(d)(i) shall no longer be payable). |
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Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date (other than any such failure that is solely due to any action or inaction by the Holder with respect to such exercise), and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Warrants with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof. |
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No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share. |
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Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares. |
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Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof. |
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e) |
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder relies on a number of outstanding shares of Common Stock that was provided by the Company. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder relies on the number of outstanding shares of Common Stock that was provided by the Company . For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or
the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within two (2) Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be [4.99/9.99]% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon written notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. If the Warrant is unexercisable as a result of the Holder’s Beneficial Ownership Limitation, no alternate consideration is owing to the Holder. |
Section 3. Certain
Adjustments.
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a) |
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification. |
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b) |
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time while this Warrant is outstanding the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all of the record holders of all of the shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent). |
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c) |
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to all holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent). |
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d) |
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of greater than 50% of the voting power of the outstanding common and preferred stock of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than a stock split), or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement (other than a stock split)) with another Person or group of Persons whereby such other Person or group acquires greater than 50% of the voting power of the outstanding common and preferred stock of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form
and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity, or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto, and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. |
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e) |
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding. |
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i. |
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment; provided, however, that the Company may satisfy this notice requirement in this Section 3(f) by filing such notice with the Commission pursuant to a Current Report on Form 8-K, Quarterly Report on Form 10-Q, Annual Report on Form 10-K or in a press release. |
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ii. |
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form other than a stock split) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock (excluding any granting or issuance of rights to all of the Company’s stockholders pursuant to a stockholder rights plan), (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights (excluding any granting or issuance of rights to all of the Company’s shareholders pursuant to a shareholder rights plan), (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 4 calendar days prior to the applicable record or effective date hereinafter specified (unless such information is filed with the Commission on its EDGAR system in which case a notice shall not be required), a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Company’s subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. |
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iii. |
Voluntary Adjustment by the Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company. |
Section 4. Transfer of Warrant.
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a) |
Transferability. Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued. |
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b) |
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto. |
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c) |
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary. |
Section 5. Miscellaneous.
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a) |
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a “cashless exercise” only as permitted in Section 2(c), and to receive the cash payments contemplated pursuant to Sections 2(d)(i) and 2(d)(iv), in no event will the Company be required to net cash settle an exercise of this Warrant. |
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b) |
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate. |
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c) |
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day. |
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d) |
Authorized Shares. The Company covenants that, at all times during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). |
Except and to the extent
as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment (it being understood that this Warrant shall not in any
case prevent the Company from effecting any such amendment, reorganization, transfer, consolidation, merger, dissolution, issuance or
sale). Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary
or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of
this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory
body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action,
which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
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e) |
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement. |
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f) |
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws. |
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g) |
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right to exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder. |
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h) |
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions of the Purchase Agreement. |
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i) |
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. |
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j) |
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate. |
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k) |
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares. |
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l) |
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holders of a majority of the Warrant Shares issued on the Closing Date that are outstanding as of such date, on the other hand. |
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m) |
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant. |
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n) |
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant. |
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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Virpax Pharmaceuticals, INC. |
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By: |
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Name: |
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Title: |
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[SIGNATURE PAGE TO PRE-FUNDED COMMON STOCK PURCHASE
WARRANT,
Virpax
Pharmaceuticals, INC.]
EXHIBIT A
NOTICE OF EXERCISE
TO: Virpax
Pharmaceuticals, INC.
(1) The undersigned hereby
elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the
form of (check applicable box):
☐
in lawful money of the United States; or
☐
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please issue said Warrant
Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity: ______________________________________________________
Signature of Authorized Signatory of Investing Entity: _________________________________
Name of Authorized Signatory: ___________________________________________________
Title of Authorized Signatory: ____________________________________________________
Date: ________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) |
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Address: |
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(Please Print) |
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Phone Number: |
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Email Address: |
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Dated: _______________ __, ______ |
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Holder’s Signature: |
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Holder’s Address: |
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Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/1708331/000121390024067945/ex5-1_001.jpg)
1271 Avenue of the Americas | New York, NY 10020
blankrome.com
August 13, 2024
The Board of Directors
Virpax Pharmaceuticals, Inc.
1055 Westlakes Drive, Suite 300
Berwyn, Pennsylvania 19312
| Re: | Registration Statement on
Form S-1 |
Ladies and Gentlemen:
We have acted as counsel to
Virpax Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), of a Registration
Statement on Form S-1 (the “Registration Statement”) relating to the offering by the Company of: (a) (i) shares (the “Shares”)
of the Company’s common stock, par value $0.00001 per share (the “Common Stock”) or (ii) Pre-Funded Warrants (the “Pre-Funded
Warrants”) to purchase shares of Common Stock (the “Pre-Funded Warrant Shares”) in lieu of the Shares. The proposed
maximum aggregate offering price of the Shares and the Warrant Shares is $7,000,000. This opinion is being delivered at the request of
the Company and in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated by the Commission.
In rendering the opinions
set forth herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration
Statement, (ii) resolutions adopted by the Board of Directors of the Company, (iii) the amended and restated certificate of incorporation
of the Company, as amended, (iv) the amended and restated bylaws of the Company, as amended (v) the form of the Pre-Funded Warrant filed
as an exhibit to the Registration Statement, and (vi) such other corporate records, agreements, certificates, including, but not limited
to, certificates or comparable documents of public officials and of officers and representatives of the Company, statutes and other instruments
and documents as we considered relevant and necessary as a basis for the opinions hereinafter expressed.
In rendering this opinion,
we have assumed, without inquiry, (i) the authenticity of all documents submitted to us as originals; (ii) the conformity to the original
documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals
of such copies; (iii) the legal capacity of all natural persons and the genuineness of all signatures on the Registration Statement and
all documents submitted to us; and (iv) that the books and records of the Company are maintained in accordance with proper corporate procedures.
As to various questions of fact material to such opinions, we have relied upon statements or certificates of officials and representatives
of the Company and others.
Based on the foregoing, and
subject to the qualifications, exceptions and assumptions stated herein, we are of the opinion that:
1. The Shares have
been duly authorized for issuance and, when issued, delivered and paid for, as contemplated in the Registration Statement and prospectus,
the Shares will be validly issued, fully paid and non-assessable.
2. When the Pre-Funded
Warrants are issued, delivered and paid for, as contemplated in the Registration Statement and prospectus, the Pre-Funded Warrants will
constitute valid and binding obligations of the Company.
3. The Pre-Funded Warrant
Shares have been duly authorized for issuance and, when issued and delivered against payment therefor upon the exercise of the Pre-Funded
Warrants in accordance with the terms therein, the Pre-Funded Warrant Shares will be validly issued, fully paid and non-assessable.
We are opining solely on all
applicable statutory provisions of Delaware corporate law, including the rules and regulations underlying those provisions, all applicable
provisions of the Delaware Constitution and all applicable judicial and regulatory determinations. This opinion is limited (a) to the
laws of the State of Delaware as in effect on the date hereof and (b) as to the Pre-Funded Warrants constituting valid and binding obligations
of the Company, the applicable laws of the State of New York in effect on the date hereof that, in our experience, are normally applicable
to transactions of the type contemplated by the Pre-Funded Warrants. We express no opinion with respect to the laws of any other jurisdiction.
With regard to our opinions
concerning the Pre-Funded Warrants constituting valid and binding obligations of the Company:
1. Our
opinions are subject to, and may be limited by, (a) applicable bankruptcy, reorganization, insolvency, conservatorship, moratorium, fraudulent
conveyance, fraudulent transfer, and similar laws and court decisions affecting the rights and remedies of creditors and secured parties
generally, and (b) general principles of equity (including, without limitation, concepts of materiality, reasonableness, impossibility
of performance, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law.
2. Our opinions are
subject to the qualification that the availability of specific performance, an injunction or other equitable remedies is subject to the
discretion of the court before which the request is brought.
3. We express no
opinion as to any provision of the Pre-Funded Warrants that: (a) provides for liquidated damages, buy-in damages, monetary penalties,
prepayment or make-whole payments or other economic remedies to the extent such provisions may constitute unlawful penalties, (b) relates
to advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes
of limitations, trial by jury, or procedural rights, (c) restricts non-written modifications and waivers, (d) provides for the payment
of legal and other professional fees where such payment is contrary to law or public policy, (e) relates to exclusivity, election or accumulation
of rights or remedies, (f) authorizes or validates conclusive or discretionary determinations, or (g) provides that provisions of the
Pre-Funded Warrants are severable to the extent an essential part of the agreed exchange is determined to be invalid and unenforceable.
4. We express no
opinion as to whether a state court outside of the State of New York or a federal court of the United States would give effect to the
choice of New York law or jurisdiction provided for in the Pre-Funded Warrants.
We hereby consent to the filing
of this opinion as an Exhibit to the Registration Statement. We also hereby consent to the use of our name as your counsel under “Legal
Matters” in the prospectus constituting part of the Registration Statement. In giving this consent, we do not thereby concede that
we come within the categories of persons whose consent is required by the Securities Act or the General Rules and Regulations promulgated
thereunder. This opinion is strictly limited to the matters stated herein and no other or more extensive opinion is intended, implied
or to be inferred beyond the matters expressly stated herein. This opinion letter is not a guaranty nor may one be inferred or implied.
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Very truly yours, |
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/s/ Blank Rome LLP |
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BLANK ROME LLP |
Exhibit 10.40
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of ______________, 2024, between Virpax Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities
Act (as defined below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires
to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms
have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(k).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Authorizations”
shall have the meaning ascribed to such term in Section 3.1(pp).
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(nn).
“Board
of Directors” means the board of directors of the Company.
“BSA/PATRIOT
Act” shall have the meaning ascribed to such term in Section 3.2(e).
“Business
Day” means any day except Saturday, Sunday, any day which is a federal legal holiday in the United States or any day on which
banking institutions in the State of New York are authorized or required by law or other governmental action to close; provided,
however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay
at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the
closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems
(including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchaser’s obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the first (1st)
Trading Day following the date hereof.
“Code”
means the United States Internal Revenue Code of 1986, as amended.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.00001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company
Counsel” means Blank Rome LLP.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the
date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“DVP”
shall have the meaning ascribed to such term in Section 2.1(a).
“DWAC”
shall have the meaning ascribed to such term in Section 2.2(a)(iv).
“Environmental
Laws” shall have the meaning ascribed to such term in Section 3.1(n).
“ERISA”
shall have the meaning ascribed to such term in Section 3.2(g).
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(t).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock, restricted stock units or options, including the shares of Common
Stock underlying the restricted stock units or options, to consultants, employees, officers or directors of the Company pursuant to any
stock or option plan or arrangement duly adopted for such purpose by a majority of the non-employee members of the Board of Directors
or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company,
(b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable
or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations
or anti-dilution provisions contained therein as disclosed in the SEC Reports and the Prospectus) or to extend the term of such securities,
(c) securities pursuant to merger, acquisition or strategic transactions approved by a majority of the disinterested directors of the
Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no
registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period
in Section 4.11(a) herein, and provided further that any such issuance shall only be to a Person that is, itself or through its
subsidiaries, an operating company in a business synergistic with the business of the Company and in which the Company receives benefits
in addition to any investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for
the purpose of raising capital or to an entity whose primary business is investing in securities and (d) securities for settlement of
outstanding payables or liabilities provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the prohibition period in Section 4.11(a) herein.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1(nn).
“Hazardous
Materials” shall have the meaning ascribed to such term in Section 3.1(n).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(bb).
“Intellectual
Property” shall have the meaning ascribed to such term in Section 3.1(q).
“Issuer
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 3.1(f)(ii).
“IT
Systems and Data” shall have the meaning ascribed to such term in Section 3.1(kk).
“Liens”
mean a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right, or other restrictions.
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3.1(b).
“Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3.1(oo).
“OFAC”
shall have the meaning ascribed to such term in Section 3.1(ll).
“Offering”
means the offering of the Securities hereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Per
Share Purchase Price” equals $[ ], subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement and before the Closing Date; provided
that the purchase price per Pre-Funded Warrant shall be the Per Share Purchase Price minus $0.00001.
“Placement
Agent” means RBW Capital Partners LLC acting through Dominari Securities LLC.
“Placement
Agency Agreement” means that certain Placement Agency Agreement by and between the Company and the Placement Agent, dated as
of the date hereof.
“Preliminary
Prospectus” means the preliminary prospectus included in the Registration Statement at the time the Registration Statement
is declared effective.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Pre-Funded Warrants” means collectively, the pre-funded
Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, in substantially the
form of Exhibit A attached hereto.
“Pre-Settlement
Period” shall have the meaning ascribed to such term in Section 2.1(b).
“Pre-Settlement
Securities” shall have the meaning ascribed to such term in Section 2.1(b).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition) pending or, to the Company’s knowledge, threatened in writing against or affecting the Company, any Subsidiary
or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign).
“Prospectus”
means the final Prospectus complying with Rule 424(b) under the Securities Act filed with the Commission and delivered by the Company
to each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” the Company’s registration statement on Form S-1 (File No. 333-281080).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Sanctioned
Person” shall have the meaning ascribed to such term in Section 3.2(e).
“Sanctions”
shall have the meaning ascribed to such term in section 3.2(e).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities” means the Shares, the Pre-Funded Warrants,
and the Pre-Funded Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Shell
Bank” shall have the meaning ascribed to such term in Section 3.2(e).
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for the Shares or Pre-Funded Warrants (in lieu of Shares)
purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds.
“Subsidiary”
and “Subsidiaries” shall have the meanings ascribed to such terms in Section 3.1(a).
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: The Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to the foregoing).
“Transaction
Documents” means this Agreement, the Pre-Funded Warrants, and the Placement Agency Agreement, including all exhibits and schedules
thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer LLC, Inc, the current transfer agent of the Company, with a mailing address of 18 Lafayette Pl,
Woodmere, NY 11598, and any successor transfer agent of the Company.
“U.S.
GAAP” means generally accepted accounting principles in the United States.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.11(b).
ARTICLE
II
PURCHASE AND SALE
2.1 Closing. On the Closing Date, upon the terms and subject
to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, the
Shares and/or the Pre-Funded Warrants subscribed for by such Purchaser. Notwithstanding anything herein to the contrary, to the extent
that a Purchaser determines, in its sole discretion, that such Purchaser’s Subscription Amount (together with such Purchaser’s
Affiliates and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) would cause such
Purchaser’s beneficial ownership of the shares of Common Stock to exceed the Beneficial Ownership Limitation, or as such Purchaser
may otherwise choose, such Purchaser may elect to purchase Pre-Funded Warrants in lieu of the Shares as determined pursuant to Section
2.2(a). The “Beneficial Ownership Limitation” shall be 4.99% (or, at the election of the Purchaser at Closing, 9.99%)
of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of the Shares on the Closing Date.
In each case, the election to receive Pre-Funded Warrants is solely at the option of the Purchaser. Each Purchaser’s Subscription
Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment”
(“DVP”) settlement with the Company or its designee. The Company and each Purchaser shall deliver the other items set
forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3,
the Closing shall occur remotely via the exchange of documents and signatures or such other location as the parties shall mutually agree.
Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Closing Date, the Company
shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s)
at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver
such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer
to the Company). Notwithstanding the foregoing, with respect to any Notice(s) of Exercise (as defined in the Pre-Funded Warrants) delivered
on or prior to 12:00 p.m. (New York City time) on the Closing Date, which may be delivered at any time after the time of execution of
this Agreement, the Company agrees to deliver the Pre-Funded Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time)
on the Closing Date and the Closing Date shall be the Warrant Share Delivery Date (as defined in the Pre-Funded Warrants) for purposes
hereunder, provided that payment of the aggregate Exercise Price (as defined in the Pre-Funded Warrants) (other than in the case of a
cashless exercise) is received by such Warrant Share Delivery Date. Unless otherwise directed by the Placement Agent, as soon as reasonably
practicable after the Closing Date, the Pre-Funded Warrants shall be issued to each Purchaser in originally signed form.
2.2
Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i)
this Agreement duly executed by the Company;
(ii)
a legal opinion of Company Counsel, in form and substance reasonably satisfactory to the Placement Agent, directed to the Placement Agent
and the Purchasers;
(iii)
the Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(iv)
subject to the penultimate sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to each Purchaser’s Subscription Amount divided by the Per Share Purchase Price (minus the number of shares of Common
Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrant, if applicable), registered in the name of such Purchaser;
(v)
for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a signed Pre-Funded Warrant registered in the name of such Purchaser
to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to
Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.00001, with an exercise price equal to $0.00001, subject to adjustment
therein; and
(vi)
the Preliminary Prospectus and the Prospectus (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount (minus, if applicable, a Purchasers aggregate exercise price of the Pre-Funded Warrants, which
amounts shall be paid as and when such Pre-Funded Warrants are exercised for cash), which shall be made available for DVP settlement
with the Company or its designees.
2.3
Closing Conditions.
(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless
such representation or warranty is as of a specific date therein in which case they shall be accurate in all material respects (or, to
the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been
performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless
such representation or warranty is as of a specific date therein in which case they shall be accurate in all material respects (or, to
the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity (excluding
the outbreak of COVID-19 and the SARS-CoV-2 virus) of such magnitude in its effect on, or any material adverse change (excluding volatility)
in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to
purchase the Securities at the Closing.
ARTICLE
III
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the SEC Reports, the Company hereby makes the following
representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports (each, a “Subsidiary”,
and collectively, the “Subsidiaries”). The Company owns, directly or indirectly, all of the capital stock or other
equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each
Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase
securities. There are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right
to subscribe for or acquire, any capital stock or equity interests, as applicable, of any Subsidiary, or contracts, commitments understandings
or arrangements by which any Subsidiary is or may become bound to issue capital stock or equity interests, as applicable.
(b) Organization
and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority
to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary
is in violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have resulted in or reasonably
be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii)
a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company
and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”);
provided that a change in the market price or trading volume of the Common Stock alone shall not be deemed, in and of itself,
to constitute a Material Adverse Effect. No Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing
or seeking to revoke, limit or curtail such power and authority or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other
than in connection with the Required Approvals. This Agreement and each other Transaction Document to which the Company is a party has
been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of the Company’s certificate of incorporation, bylaws, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the
Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii)
subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority, to which the Company or a Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except
in the case of each of clauses (ii) and (iii), such as would not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect.
(e) Filings, Consents and Approvals. Neither the
Company nor any Subsidiary is required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state (including state blue sky law), local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings
required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus, (iii) application(s) to each
applicable Trading Market for the listing of the Shares and the Pre-Funded Warrant Shares for trading thereon in the time and manner required
thereby, and (iv) filings required by the Financial Industry Regulatory (collectively, the “Required Approvals”).
(f) Issuance
of the Securities; Qualification; Registration.
(i) The Shares are duly authorized and, when issued and paid for
in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed
by the Company other than restrictions on transfer provided for in the Transaction Documents and shall not be subject to preemptive or
similar rights of stockholders. The Pre-Funded Warrants when paid for and issued in accordance with this Agreement, will constitute valid
and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general
principles of equity. The Pre-Funded Warrant Shares, when issued in accordance with the terms of the Pre-Funded Warrants, will be validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided
for in the Transaction Documents and shall not be subject to preemptive or similar rights of stockholders. The Company has reserved from
its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and the Pre-Funded
Warrants (without taking into account any limitations on the exercise of the Pre-Funded Warrants set forth therein).
(ii) The
Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective
on [ ], 2024, including the Preliminary Prospectus, and such amendments and supplements thereto as may have been required to the date
of this Agreement. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness
of the Registration Statement or suspending or preventing the use of the Preliminary Prospectus or the Prospectus has been issued by
the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission.
The Company shall file the Preliminary Prospectus or the Prospectus with the Commission pursuant to Rule 424(b). At the time the Registration
Statement and any amendments thereto became effective as determined under the Securities Act, at the date of this Agreement and at the
Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements
of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any amendments or supplements
thereto, at the time the Preliminary Prospectus, the Prospectus or any amendment or supplement thereto was issued and at the Closing
Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain
an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Any
“issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Securities is hereafter
referred to as an “Issuer Free Writing Prospectus”. Any reference herein to the Preliminary Prospectus and the Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein as of the date of filing thereof; and any reference
herein to any “amendment” or “supplement” with respect to any of the Preliminary Prospectus and the Prospectus
shall be deemed to refer to and include (i) the filing of any document with the Commission incorporated or deemed to be incorporated
therein by reference after the date of filing of such Preliminary Prospectus or Prospectus and (ii) any such document so filed.
All
references in this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any Issuer Free Writing Prospectus,
or any amendments or supplements to any of the foregoing, shall be deemed to include any copy thereof filed with the Commission on EDGAR.
(iii)
The Registration Statement complies, and the Prospectus and any further amendments or supplements to the Registration Statement or the
Prospectus will comply, in all material respects, with the applicable provisions of the Securities Act, and do not, and will not, as
of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus
and any amendment thereof or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iv)
No order preventing or suspending the use of the Prospectus has been issued by the Commission.
(g) Capitalization. The equity capitalization of
the Company is substantially as set forth in the Registration Statement and the SEC Reports as of the dates indicated therein. The Company
has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise
of employee stock options or vesting and settlement of restricted stock units under the Company’s equity incentive plans, the issuance
of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or
exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. All
of the issued and outstanding shares of Common Stock are fully paid and non-assessable and have been duly and validly authorized and issued,
in compliance with all federal and state securities laws and not in violation of or subject to any preemptive or similar right that entitles
any Person to acquire from the Company any shares of Common Stock or other security of the Company or any security convertible into, or
exercisable or exchangeable for, shares of Common Stock or any other such security, except for such rights as may have been fully satisfied
or waived prior to the date hereof. The Company has no outstanding options, warrants, scrip rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or
giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements
by which the Company is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. No Person has any
right of first refusal, pre-emptive right, right of participation, or any similar right to participate in the transactions contemplated
by the Transaction Documents. The issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or
other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust
the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of
the Company with any provision that adjusts the exercise conversion, exchange or reset price of such security or instrument upon an issuance
of securities by the Company. There are no outstanding securities or instruments of the Company that contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem
a security of the Company. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. Except for the Required Approvals, no further approval or authorization of any stockholder of the Company,
the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s stockholders.
(h)
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Securities Act and Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date
hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein, together with the Preliminary Prospectus and the Prospectus, being
collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension (or waiver
from the Commission) of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(i) Financial
Statements. The consolidated financial statements of the Company, including the notes thereto, included or incorporated by reference
in the Registration Statement and Prospectus comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in
accordance with accounting principles generally accepted in the United States (“U.S. GAAP”) applied on a consistent
basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto and except
that unaudited financial statements may not contain all footnotes required by U.S. GAAP, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(j) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest consolidated financial statements included
or incorporated by reference into the Registration Statement and the Prospectus, (i) there has been no event, occurrence or development
that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) neither the Company nor any Subsidiary
has incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course
of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements
pursuant to U.S. GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv)
the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its capital stock and (v) Neither the Company nor any Subsidiary has not issued
any equity securities to any officer, director or Affiliate, except pursuant to existing Company equity compensation plans, or in connection
with the prior offerings of the Company’s securities in which certain officers, directors and Affiliates have participated. The
Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of
the Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists
or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects,
properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities
laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to
the date that this representation is made.
(k) Litigation. Except as set forth in the SEC Reports,
there is no action, suit, inquiry, notice of violation, Proceeding or investigation pending or, to the knowledge of the Company, threatened
against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
which, if there were an unfavorable decision, would individually or in the aggregate, have resulted in or reasonably be expected to result
in a Material Adverse Effect. None of the Actions set forth in the SEC Reports, adversely affects or challenges the legality, validity
or enforceability of any of the Transaction Documents or the Securities. Except as set forth in the SEC Reports, neither the Company nor
any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company,
there is not pending or threatened, any investigation by the Commission involving the Company or any current or former director or officer
of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(l) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company
or any Subsidiary, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(m) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case of (i), (ii) and (iii) as could not have or reasonably be expected to
result in a Material Adverse Effect.
(n) Environmental
Law. The Company and its Subsidiaries (i) are in compliance with all applicable federal, state, local and foreign laws relating to
pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(o) Title
to Assets. The Company and the Subsidiaries do not own any real estate. The Company and the Subsidiaries have good and marketable
title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free
and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal,
state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither
delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by
them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance, except where the failure
to be in compliance would not reasonably be expected to have a Material Adverse Effect.
(p) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(q) Intellectual
Property. The Company and its Subsidiaries to their knowledge own, possess, or can acquire on reasonable terms, all Intellectual
Property (as defined below) necessary for the conduct of the Company’s or any Subsidiary’s business as now conducted or as
described in the SEC Reports to be conducted, and there are no unreleased liens or security interests which have been filed against any
of the patents owned by the Company or its Subsidiaries. Furthermore, (i) to the knowledge of the Company, there is no infringement,
misappropriation or violation by third parties of any such Intellectual Property; (ii) there is no pending or, to the knowledge of the
Company, threatened, action, suit, Proceeding or other claim by others challenging the Company’s or any Subsidiary’s rights
in or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim;
(iii) the Intellectual Property owned by the Company or its Subsidiaries, and to the knowledge of the Company, the Intellectual Property
licensed to the Company or its Subsidiaries, has not been adjudged invalid or unenforceable, in whole or in part, and there is no pending
or, to the knowledge of the Company, threatened action, suit, Proceeding or other claim by others challenging the validity or scope of
any such Intellectual Property, and the Company is not aware of any facts which would form a reasonable basis for any such claim; (iv)
there is no pending or, to the knowledge of the Company, threatened action, suit, Proceeding or other claim by others that the Company
or any of its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights of
others, neither the Company nor any of its Subsidiaries has received any written notice of such claim and the Company is unaware of any
other fact which would form a reasonable basis for any such claim; (v) the Company and its Subsidiaries have complied with the material
terms of each agreement pursuant to which Intellectual Property has been licensed to the Company or its Subsidiaries, and all such agreements
are in full force and effect; and (vi) any product candidates described in the SEC Reports as under development by the Company or its
Subsidiaries fall within the scope of the claims of one or more patents or applications relating to the product candidate or its intended
use owned by, or exclusively licensed to, the Company or its Subsidiaries; and (vii) to the Company’s knowledge, no employee of
the Company or any of its Subsidiaries is in or has ever been in violation of any term of any employment contract, patent disclosure
agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive
covenant to or with a former employer where the basis of such violation relates to such employee’s employment with the Company
or any of its Subsidiaries or actions undertaken by the employee while employed with the Company or any of its Subsidiaries, except,
in the case of clause (vii), as would not reasonably be expected to have a Material Adverse Effect. “Intellectual Property”
shall mean all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets, domain names, technology, know-how and other intellectual property.
(r) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any
Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(s) Transactions With Affiliates and Employees.
None of the executive officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees
of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as
employees, consultant, executive officers and directors), including any contract, agreement or other arrangement providing for the furnishing
of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending
of money to or otherwise requiring payments to or from any executive officer, director or such employee or, to the knowledge of the Company,
any entity in which any executive officer, director, or any such employee has a substantial interest or is an officer, director, trustee,
stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services
rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option
agreements under any stock option plan of the Company.
(t) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with the applicable provisions
of the Sarbanes-Oxley Act of 2002, as amended. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with applicable securities laws
and U.S. GAAP and to maintain asset 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 the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries, and designed such disclosure
controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company as
of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since
the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange
Act) of the Company or the Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control
over financial reporting of the Company.
(u) Certain
Fees. Except for fees payable to the Placement Agent, no brokerage or finder’s fees or commissions are or will be payable by
the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section 3.1(u)
that may be due in connection with the transactions contemplated by the Transaction Documents.
(v) Investment Company. The Company is not, and
immediately after receipt of payment for the Securities, will not be an “investment company” within the meaning of the Investment
Company Act of 1940, as amended. As long as the Pre-Funded Warrants remain outstanding, the Company shall use its reasonable efforts to
conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment
Company Act of 1940, as amended.
(w) Registration
Rights. Other than to each of the Purchasers pursuant to this Agreement, no Person has any right to cause the Company to effect the
registration under the Securities Act of any securities of the Company.
(x) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken
no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under
the Exchange Act. The Company has not received any notice from the Commission that it is contemplating terminating such registration.
Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such Trading Market. The Common Stock is currently eligible for electronic transfer through the Depository
Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company
(or such other established clearing corporation) in connection with such electronic transfer.
(y) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s articles of incorporation (or similar charter documents) or the laws of its jurisdiction
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s
issuance of the Securities and the Purchasers’ ownership of the Securities.
(z) Disclosure. Except with respect to the material
terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other
Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes
or might constitute material, non-public information, which is not otherwise disclosed in the Prospectus. The Company understands and
confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. All of
the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective
businesses and the transactions contemplated hereby, including pursuant to the SEC Reports and the Disclosure Schedules to this Agreement,
is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company acknowledges
and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Section 3.2 hereof.
(aa) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither
the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities
to be integrated with prior offerings by the Company for purposes of any applicable stockholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated.
(bb)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt
by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds
the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its
business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any
facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the Closing Date. Neither the Company nor any Subsidiary is in default with respect to
any Indebtedness. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money
or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties,
endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected
in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments
in excess of $50,000 due under leases required to be capitalized in accordance with U.S. GAAP.
(cc) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, each of the Company and the Subsidiaries (i) has made or filed all United States federal, state and local income and
all foreign tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations
and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.
(dd) Foreign
Corrupt Practices; Criminal Acts. None of the Company, any Subsidiary, any director or officer thereof or, to the knowledge of the
Company, any agent, employee, affiliate or other Person acting on behalf of the Company or any Subsidiary is aware of or has taken any
action, directly or indirectly, that would result in a violation by such Persons of the FCPA or any applicable anti-corruption laws,
rules, or regulation of the U.S. or any other jurisdiction in which the Company or any Subsidiary conducts business, including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving
of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company, the Subsidiaries and, to the knowledge
of the Company, the Affiliates of the Company and the Subsidiaries have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith. Neither the Company nor any Subsidiary has engaged in, or will engage in, (i) any direct or indirect dealings or
transactions in violation of U.S. federal or state criminal laws, including, without limitation, the Controlled Substances Act, the Racketeer
Influenced and Corrupt Organizations Act, the Travel Act or any anti-money laundering statute, or (ii) any “aiding and abetting”
in any violation of U.S. federal or state criminal laws.
(ee) Accountants.
The Company’s independent registered public accounting firm is as set forth in the Prospectus. To the knowledge and belief of the
Company, such accounting firm is a registered public accounting firm as required by the Exchange Act.
(ff) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
(gg) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked
by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company,
or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified term; (ii)
past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of
the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to
which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and
(iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative”
transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities (in compliance
with applicable laws) at various times during the period that the Securities are outstanding, and (z) such hedging activities (if any)
could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging activities
are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction
Documents.
(hh) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf (other than the Placement Agent, as to which
no representation is made) has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for,
purchased, or, paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person
any compensation for soliciting another to purchase any other securities of the Company, other than, in the case of clauses (ii) and
(iii), compensation paid to the Placement Agent in connection with the placement of the Securities.
(ii)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan, or as an inducement
grant outside of a stock option plan, was granted (i) in accordance with the terms of the Company’s stock option plan or under
its terms, respectively, and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such
stock option would be considered granted under U.S. GAAP and applicable law. No stock option granted under the Company’s stock
option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to
knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public
announcement of material information regarding the Company or the Subsidiaries or their financial results or prospects.
(jj)
[Reserved.]
(kk) Cybersecurity. Except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, (i)(x) There has been no security breach or other compromise
of or relating to any of the Company’s or any Subsidiary’s information technology and computer systems, networks, hardware,
software, data (including the data of its respective customers, employees, suppliers, vendors and any third party data maintained by or
on behalf of it), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and the Subsidiaries
have not been notified of, and has no knowledge of any event or condition that would reasonably be expected to result in, any security
breach or other compromise to its IT Systems and Data that would require notification to any third party, including any governmental or
regulatory authority, under applicable law; (ii) the Company and the Subsidiaries are presently in compliance in all material respects
with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection
of such IT Systems and Data from unauthorized use, access, misappropriation or modification; (iii) the Company and the Subsidiaries have
implemented and maintained commercially reasonable safeguards designed to maintain and protect its material confidential information and
the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have
implemented backup and disaster recovery procedures consistent with commercially reasonable industry standards and practices.
(ll)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(mm) U.S.
Real Property Holding Corporation. The Company is not and has never been a United States real property holding corporation within
the meaning of Section 897 of the Code, and the Company shall so certify upon Purchaser’s request.
(nn) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of 1956, as amended
(the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”).
Neither the Company nor any of its Subsidiaries owns or controls, directly or indirectly, five percent (5%) or more of the outstanding
shares of any class of voting securities or twenty-five percent or more of the total equity of a bank or any entity that is subject to
the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries exercises a controlling influence
over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(oo) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(pp)
Regulatory. Except as described in the Registration Statement, the Preliminary Prospectus and the Prospectus, as applicable, the
Company and its Subsidiaries (i) are and at all times have been in material compliance with all statutes, rules and regulations applicable
to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, advertising, labeling, promotion,
sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company including, without
limitation the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), the federal Anti-Kickback Statute (42 U.S.C. §
1320a-7b(b)), the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic
and Clinical Health Act of 2009, and the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education
Affordability Reconciliation Act of 2010, the regulations promulgated pursuant to such laws, and any successor government programs and
comparable state laws, regulations relating to Good Clinical Practices and Good Laboratory Practices and all other local, state, federal,
national, supranational and foreign laws, manual provisions, policies and administrative guidance relating to the regulation of the Company
(collectively, the “Applicable Laws”); (ii) have not received any notice from any court or arbitrator or governmental
or regulatory authority or third party alleging or asserting noncompliance with any Applicable Laws or any licenses, exemptions, certificates,
approvals, clearances, authorizations, permits, registrations and supplements or amendments thereto required by any such Applicable Laws
(“Authorizations”); (iii) possess all material Authorizations and such Authorizations are valid and in full force
and effect and are not in violation of any term of any such Authorizations; (iv) have not received written notice of any claim, action,
suit, proceeding, hearing, enforcement, investigation arbitration or other action from any court or arbitrator or governmental or regulatory
authority or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations nor
is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened; (v) have not
received any written notice that any court or arbitrator or governmental or regulatory authority has taken, is taking or intends to take,
action to limit, suspend, materially modify or revoke any Authorizations nor is any such limitation, suspension, modification or revocation
threatened; (vi) have filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed
(or were corrected or supplemented by a subsequent submission); and (vii) are not a party to any corporate integrity agreements, monitoring
agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory authority.
(qq)
Pre-Funded Warrant Shares. The Pre-Funded Warrant Shares issuable upon the exercise of the Pre-Funded Warrants will be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue
thereof.
3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and
warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case
they shall be accurate as of such date):
(a)
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance
by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to
which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof
or thereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its
terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of creditors’ rights generally; (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies; and (iii) insofar as indemnification and contribution provisions
may be limited by applicable law.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws).
(c) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(d) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports, and has been afforded: (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Placement
Agent, nor any Affiliate of the Placement Agent, has provided such Purchaser with any information or advice with respect to the Securities
nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation
as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public information
with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Securities
to such Purchaser, neither the Placement Agent, nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
(e)
Sanctioned Persons; BSA/PATRIOT Act. Purchaser is not owned or controlled by or acting on behalf of (in connection with this Agreement),
a Sanctioned Person. Purchaser is not an institution that accepts currency for deposit and that (a) has no physical presence in the jurisdiction
in which it is incorporated or in which it is operating and (b) is unaffiliated with a regulated financial group that is subject to consolidated
supervision (a “Shell Bank”) or providing banking services to a Shell Bank. Purchaser represents that if it is a financial
institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001 and its implementing
regulations (collectively, the “BSA/PATRIOT Act”), that Purchaser maintains policies and procedures reasonably designed
to comply with applicable obligations under the BSA/PATRIOT Act. Purchaser also represents that, to the extent required by applicable
law, it maintains, either directly or through the use of a third-party administrator, policies and procedures reasonably designed for
the screening of any investors in the Purchaser against Sanctions-related lists of blocked or restricted persons. Purchaser further represents
and warrants that (a) the funds held by Purchaser and used to purchase the Securities were not directly or indirectly derived from or
related to any activities that may contravene U.S. federal, state or non-U.S. anti-money laundering, anti-corruption or Sanctions laws
and regulations or activities that may otherwise be deemed criminal and (b) any returns from the Purchaser’s investment will not
be used to finance any illegal activities. For purposes of this Agreement, “Sanctioned Person” means at any time any
person or entity with whom dealings are restricted, prohibited, or sanctionable under any Sanctions (as defined below), including as
a result of being: (a) listed on any Sanctions-related list of designated or blocked or restricted persons; (b) that is a national of,
the government of, or any agency or instrumentality of the government of, or resident in, or organized under the laws of, a country or
territory that is the target of comprehensive Sanctions from time to time (as of the date of this Agreement, Cuba, Iran, North Korea,
Syria, and the Crimea region); or (c) a relationship of ownership, control, or agency with any of the foregoing. “Sanctions”
means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force
of law) administered, enacted or enforced from time to time by (a) the United States (including without limitation the U.S. Department
of the Treasury, Office of Foreign Assets Control, the U.S. Department of State, and the U.S. Department of Commerce), (b) the European
Union and enforced by its member states, (c) the United Nations and (d) the United Kingdom.
(f)
Non-cooperative Jurisdiction. Purchaser is not owned or controlled by or acting on behalf of (in connection with this Agreement),
a person or entity resident in, or whose funds used to purchase the Securities are transferred from or through, a country, territory
or entity that (i) has been designated as non-cooperative with international anti-money laundering or counter terrorist financing principles
or procedures by the United States or by an intergovernmental group or organization, such as the Financial Action Task Force, of which
the United States is a member; (ii) is the subject of an advisory issued by the Financial Crimes Enforcement Network of the U.S. Department
of the Treasury; or (iii) has been designated by the Secretary of the Treasury under Section 311 of the USA PATRIOT Act as warranting
special measures due to money laundering concerns (any such country or territory, a “Non-cooperative Jurisdiction”),
or an entity or individual that resides or has a place of business in, or is organized under the laws of, a Non-cooperative Jurisdiction.
(g)
ERISA. If Purchaser is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is subject to section 4975
of the Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined
in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing
but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such
provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such
plan, account or arrangement subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber
represents and warrants that the acquisition and holding of the Securities will not result in a non-exempt prohibited transaction under
ERISA or Section 4975 of the Code.
(h) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, each Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company or “derivative” securities based on securities issued by the
Company during the period commencing as of the time that such Purchaser first held discussions (written or oral) with the Company or
any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately
prior to execution of this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives,
including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser
has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms
of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation
or warranty, or preclude any actions with respect to the borrowing of, arrangement to borrow, identification of the availability of,
and/or securing of, securities of the Company in order for such Purchaser (or its broker or other financial representative) to effect
Short Sales or similar transactions following the Closing Date. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed
investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers
have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s
assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made
the investment decision to purchase the Securities covered by this Agreement.
(i)
No Governmental Review. Such Purchaser understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order
to effect Short Sales or similar transactions in the future.
ARTICLE
IV
OTHER AGREEMENTS OF THE PARTIES
4.1 Legends. The Shares and the Pre-Funded Warrant Shares shall
be issued free of legends. If at any time following the date hereof the Registration Statement is not effective or is not otherwise available
for the sale of the Shares, the Pre-Funded Warrants or the Pre-Funded Warrant Shares, the Company shall immediately notify the holders
of the Pre-Funded Warrants in writing that such registration statement is not then effective and thereafter shall promptly notify such
holders when the registration statement is effective again and available for the sale of the Shares, the Pre-Funded Warrants or the Pre-Funded
Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser
to sell, any of the Shares, the Pre-Funded Warrants or the Pre-Funded Warrant Shares in compliance with applicable federal and state securities
laws). The Company shall use commercially reasonable efforts to keep a registration statement (including the Registration Statement) registering
the issuance of the Pre-Funded Warrant Shares effective during the term of the Pre-Funded Warrants.
4.2
Furnishing of Information; Public Information. Until the time that no Purchaser owns Securities the Company covenants, the Company
covenants to use its reasonable efforts to maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange
Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to
be filed by the Company after the date hereof pursuant to the Exchange Act, even if the Company is not then subject to the reporting
requirements of the Exchange Act, except in the event that the Company consummates: (a) any transaction or series of related transactions
as a result of which any Person (together with its Affiliates) acquires then outstanding securities of the Company representing more
than fifty percent (50%) of the voting control of the Company; (b) a merger or reorganization of the Company with one or more other entities
in which the Company is not the surviving entity; or (c) a sale of all or substantially all of the assets of the Company.
4.3
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the
rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction
unless stockholder approval is obtained before the closing of such subsequent transaction.
4.4
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time issue a press release disclosing the material
terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits
thereto with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company
represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers
by the Company or any of the Subsidiaries, or any of their respective officers, directors, employees or agents, including, without limitation,
the Placement Agent, in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance
of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement,
whether written or oral, between the Company, any of the Subsidiaries or any of their respective officers, directors, agents, employees
or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates, including, without limitation, the Placement Agent,
on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that each Purchaser shall
be relying on the foregoing covenant in effecting transactions in securities of the Company. The Company and each Purchaser shall consult
with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor
any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company,
with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release
of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case
the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing
or submission with or to the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser,
except (a) as required by federal securities law in connection with the filing or submission of final Transaction Documents with or to
the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall
provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.5
Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person,
that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by
the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting
on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto such Purchaser shall have consented in writing to the receipt of such
information and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company,
any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall
not have any duty of confidentiality to the Company, any of the Subsidiaries, or any of their respective officers, directors, agents,
employees or Affiliates, or a duty to the Company, any of the Subsidiaries or any of their respective officers, directors, agents, employees
or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to
applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public
information regarding the Company or any Subsidiaries, the Company shall simultaneously file such material non-public information on
with the Commission pursuant to a Current Report on Form 8-K or shall issue a press release containing such material non-public information.
The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities
of the Company.
4.7
Use of Proceeds. Except as set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company
shall use the net proceeds from the sale of the Securities hereunder as set forth under the caption “Use of Proceeds” in
Registration Statement, the Preliminary Prospectus and the Prospectus for working capital and general corporate purposes and shall not
use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary
course of the Company’s business and prior practices or as disclosed in the Registration Statement), (b) for the redemption of
any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation, or (d) in violation of FCPA or OFAC
regulations.
4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser
and its directors, officers, stockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or
incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company
in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or
any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect
to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such
Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings
such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws
or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct),
the Company will indemnify each Purchaser Party, to the fullest extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses, as incurred, arising
out of or relating to (i) any untrue or alleged untrue statement of a material fact contained in such registration statement, any prospectus
or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the
case of any prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, except to
the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Purchaser
Party furnished in writing to the Company by such Purchaser Party expressly for use therein, or (ii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder in connection
therewith. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement,
such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof
with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense
of such Purchaser Party except to the extent that (x) the employment thereof has been specifically authorized by the Company in writing,
(y) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (z) in such action there
is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position
of such Purchaser Party, in which case the Company shall be responsible for the reasonable actual and documented fees and expenses of
no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement
by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed;
or (2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach
of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction
Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course
of the investigation or defense, as and when bills are received or are incurred provided however, that if it is subsequently determined
by a final, non-appealable judgment of a court of competent jurisdiction that such Purchaser Party was not entitled to receive such periodic
payments, such Purchaser Party shall promptly (but in no event later than five (5) Business Days) return such payments to the Company.
The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against
the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9 Reservation of Common Stock. As of the date hereof, the
Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient
number of shares of Common Stock for the purpose of enabling the Company to issue Shares pursuant to this Agreement and Warrant Shares
pursuant to any exercise of the Pre-Funded Warrants, if applicable.
4.10 Listing of Common Stock. The Company hereby agrees to use
commercially reasonable efforts to maintain the listing of the Common Stock on the Trading Market on which it is currently listed, and
concurrently with the Closing, the Company shall apply to list or quote all of the Shares and the Pre-Funded Warrant Shares on such Trading
Market and promptly secure the listing of all of the Shares and the Warrant Shares on such Trading Market. The Company further agrees,
if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the
Shares and the Pre-Funded Warrant Shares, and will take such other action as is necessary to cause all of the Shares and the Pre-Funded
Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably
necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility
of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including,
without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection
with such electronic transfer. Notwithstanding the foregoing, this Section 4.10 shall not apply in
the event that the Company consummates: (a) any transaction or series of related transactions as a result of which any Person (together
with its Affiliates) acquires then outstanding securities of the Company representing more than fifty percent (50%) of the voting control
of the Company; (b) a merger or reorganization of the Company with one or more other entities in which the Company is not the surviving
entity; or (c) a sale of all or substantially all of the assets of the Company.
4.11
Subsequent Equity Sales.
(a) From the date hereof until thirty (30) days after the Closing Date,
neither the Company nor any Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance
of any shares of Common Stock or Common Stock Equivalents or (ii) file any registration statement or amendment or supplement thereto,
other than filing the final Prospectus or a registration statement on Form S-8 in connection with any employee benefit plan or supplements
or amendments to registration statements or supplements previously filed.
(b)
From the date hereof until thirty (30) days after the Closing Date, the Company shall be prohibited from effecting or entering into an
agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents (or
a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction
in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or
include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other
price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial issuance
of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future
date after the initial issuance of such debt or equity security (other than in connection with a stock split or stock dividend or similar
event) or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the
market for shares of Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to,
an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities at a future determined
price regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently
cancelled. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy
shall be in addition to any right to collect damages. to preclude any such issuance, which remedy shall be in addition to any right to
collect damages.
(c)
Notwithstanding the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction
shall be an Exempt Issuance.
4.12
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid
to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat
the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Securities or otherwise.
4.13
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that
neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at
such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as
described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described
in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction. Notwithstanding the
foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that
(i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities
of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any
securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser
shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or the Subsidiaries or any
of their respective officers, directors, employees, Affiliates, or agent, including without limitation, the Placement Agent, after the
issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is
a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and
the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of
such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by this Agreement.
4.14 Exercise Procedures. The form of Notice of Exercise included
in the Pre-Funded Warrants sets forth the totality of the procedures required of the Purchasers in order to exercise the Pre-Funded Warrants.
No additional legal opinion, other information, or instructions shall be required of the Purchasers to exercise their Pre-Funded Warrants.
Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Notice of Exercise form be required in order to exercise the Pre-Funded Warrants. The
Company shall honor exercises of the Pre-Funded Warrants and shall deliver Pre-Funded Warrant Shares in accordance with the terms, conditions,
and time periods set forth in the Transaction Documents.
ARTICLE
V
MISCELLANEOUS
5.1
Termination. This Agreement may be terminated with respect to any Purchaser, as to such Purchaser’s obligations hereunder
only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other
parties, if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided,
however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice
delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules hereto, the Prospectus contain the entire
understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest
of: (a) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment
at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day,
(b) the next Trading Day after the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number
or email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be as set forth on the signature pages attached hereto.To the extent that any notice
provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any
Subsidiaries, the Company shall simultaneously furnish such notice with the Commission pursuant to a Current Report on Form 8-K or by
issuing a press release containing such material non-public information.
5.5 Amendments; Waivers. No provision of this Agreement may
be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchasers
which at the time of the such waiver, modification, supplement or amendment, hold at least 50.1% of the Securities purchased pursuant
to this Agreement based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement
of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts
a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be
required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall
any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment
or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable
rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment
effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and
permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the
transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8
Third-Party Beneficiaries. The Placement Agent shall be the third-party beneficiary of the representations and warranties of the
Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit
of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof
be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition
to the obligations of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing
party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such action or proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities for
the applicable statute of limitations.
5.11
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page were an original thereof.
5.12
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal Right. Notwithstanding anything
to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser
exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations
within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written
notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights
provided, however, that in the case of a rescission of an exercise of a Pre-Funded Warrant, the applicable Purchaser shall be required
to return any shares of Common Stock subject to any such rescinded exercise notice concurrently (if such shares were delivered to the
applicable Purchaser) with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration
of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Pre-Funded Warrant (including, issuance of a
replacement warrant certificate evidencing such restored right).
5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages,
each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction
Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that
a remedy at law would be adequate.
5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document
or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
5.17
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document
are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance
or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to
communicate with the Company through Lucosky Brookman LLP. Lucosky Brookman LLP does not represent any of the Purchasers and only represents
the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience
of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed
that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely,
and not between the Company and the Purchasers collectively and not between and among the Purchasers.
5.18
Liquidated Damages. The Company’s obligations to pay any liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate until all unpaid liquidated damages and other amounts have
been paid notwithstanding the fact that the instrument or security pursuant to which such liquidated damages or other amounts are due
and payable shall have been canceled.
5.19
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
5.20
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise
the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the
date of this Agreement.
5.21
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE
PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
VIRPAX PHARMACEUTICALS, INC. |
|
Address for Notice: |
|
|
|
By: |
|
|
1055 Westlakes Drive, Suite 300 |
|
Name: |
Gerald Bruce |
|
Berwyn, PA 19312 |
|
Title: |
Chief Executive Officer |
|
Attn: Gerald Bruce |
|
|
Email: gbruce@virpaxpharma.com |
With
a copy to (which shall not constitute notice):
Blank
Rome LLP
1271
Avenue of the Americas
New
York, NY 10020
Attention:
Leslie Marlow
Email:
leslie.marlow@blankrome.com
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO VRPX
SECURITIES
PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
Name
of Purchaser: _____________________________________________________________________________
Signature
of Authorized Signatory of Purchaser: _______________________________________________________
Name
of Authorized Signatory: ____________________________________________________________________
Title
of Authorized Signatory: _____________________________________________________________________
Email
Address of Authorized Signatory: _____________________________________________________________
Facsimile
Number of Authorized Signatory: _________________________________________________________
Address
for Notice to Purchaser: __________________________________________________________________
_____________________________________________________________________________________________
Address
for Delivery of Pre-Funded Warrant to Purchaser (if not same as address for notice): _____________________________
_____________________________________________________________________________________________
Subscription
Amount: $ _________________________________________________________________________
Shares:
_______________________________________________________________________________________
EIN:
_________________________________________________________________________________________
Pre-Funded
Warrant: __________________ Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
☐
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to
purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the
Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii)
the Closing shall occur on the second (2nd) Trading Day following the date of this Agreement and (iii) any condition to Closing
contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed
of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead
be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate
or the like or purchase price (as applicable) to such other party on the Closing Date.
Exhibit
A
Form
of Pre-Funded Warrant
(See
attached)
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation
by reference in this Amendment No. 1 to the Registration Statement of Virpax Pharmaceuticals, Inc. on Form S-1 (No. 333- 281080) to be
filed on or about August 12, 2024 of our report dated March 25, 2024, on our audits of the financial statements as of December 31, 2023
and 2022 and for each of the years then ended, which report was included in the Annual Report on Form 10-K filed March 26, 2024. Our report
includes an explanatory paragraph about the existence of substantial doubt concerning the Company's ability to continue as a going concern.
We also consent to the reference to our firm under the caption “Experts” in this Registration Statement.
/s/ EisnerAmper LLP
EISNERAMPER LLP
Iselin, New Jersey
August 12, 2024
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