Form 8-K
8-K — HYPERION DEFI, INC.
Accession: 0001104659-26-056237
Filed: 2026-05-06
Period: 2026-05-05
CIK: 0001682639
SIC: 2834 (PHARMACEUTICAL PREPARATIONS)
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2613728d1_8k.htm (Primary)
EX-1.1 — EXHIBIT 1.1 (tm2613722d1_ex1-1.htm)
EX-5.1 — EXHIBIT 5.1 (tm2613722d1_ex5-1.htm)
EX-99.1 — EXHIBIT 99.1 (tm2613722d1_ex99-1.htm)
EX-99.2 — EXHIBIT 99.2 (tm2613722d1_ex99-2.htm)
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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date
of earliest event reported): May 5, 2026
HYPERION DEFI, INC.
(Exact name of Registrant
as Specified in Its Charter)
Delaware
001-38365
47-1178401
(State or Other Jurisdiction of Incorporation)
(Commission File Number)
(IRS Employer Identification No.)
3090 Nowitzki Way
Suite 300
Dallas, Texas
75219
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s
Telephone Number, Including Area Code: (833) 393-6684
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol (s)
Name of each exchange on which registered
Common Stock, $0.0001 par value per share
HYPD
The Nasdaq Stock Market
(Nasdaq Capital Market)
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01 Other Events.
On May 5, 2026, Hyperion DeFi, Inc. (the “Company”)
entered into an underwriting agreement (the “Underwriting Agreement”) with Chardan Capital Markets, LLC (the “Underwriter”),
relating to the issuance and sale of 2,777,778 shares (the “Shares”) of the Company’s common stock, par value $0.0001
per share (the “Common Stock”), at an offering price of $3.60 per share. The Underwriter has agreed to purchase the Shares
from the Company pursuant to the Underwriting Agreement at a price of $3.384 per Share. In addition, the Company has granted the Underwriter
a 30-day option to purchase up to 416,666 additional shares of Common Stock at the public offering price, less underwriting discounts
and commissions. The net proceeds to the Company from this offering are expected to be approximately $8.7 million, or approximately $10.1
million if the Underwriter’s option to purchase additional shares is exercised in full, after deducting underwriting discounts
and commissions and estimated offering expenses payable by the Company. The offering is expected to close on May 7, 2026, subject to
the satisfaction of customary closing conditions.
The offering is being made pursuant to the Company’s
shelf registration statement on Form S-3 (Registration Statement No. 333-291570), which was declared effective by the Securities and Exchange
Commission (the “SEC”) on December 9, 2025, and a prospectus supplement and accompanying prospectus filed with the SEC.
The Underwriting Agreement contains customary
representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company
and the Underwriter, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination
provisions. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such
agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed
upon by the contracting parties.
The foregoing description of the Underwriting
Agreement is not complete and is qualified in its entirety by reference to the full text of the Underwriting Agreement, a copy of which
is filed as Exhibit 1.1 to this report and is incorporated by reference herein. A copy of the opinion of Latham & Watkins LLP relating
to the legality of the issuance and sale of the Common Stock in the offering is attached as Exhibit 5.1 to this report.
The Company issued press releases on May 5, 2026
announcing the commencement and pricing of the offering, respectively. Copies of the press releases are attached as Exhibits 99.1 and
99.2 to this report.
Forward-Looking Statements
Except for historical information, all the statements,
expectations and assumptions contained in this report are forward-looking statements. The forward-looking statements are based on the
Company’s current beliefs and expectations and include, but are not limited to, the Company’s expectations regarding the expected
closing of the offering and the anticipated use of proceeds therefrom. Actual results may differ from those set forth in this report due
to the risks and uncertainties associated with market conditions and the satisfaction of customary closing conditions related to the offering,
as well as risks and uncertainties inherent in the Company’s business described in the Company’s prior filings with the SEC,
including under the heading “Risk Factors” in the Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2025, and in any subsequent filings with the SEC. You are cautioned not to place undue reliance on these forward-looking statements,
which speak only as of the date hereof, and the Company undertakes no obligation to update such statements to reflect events that occur
or circumstances that exist after the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement,
which is made under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No.
Description
1.1
Underwriting
Agreement, dated May 5, 2026, by and between Hyperion DeFi, Inc. and Chardan Capital Markets, LLC
5.1
Opinion
of Latham & Watkins LLP
23.1
Consent
of Latham & Watkins LLP (included in Exhibit 5.1)
99.1
Press
Release dated May 5, 2026
99.2
Press
Release dated May 6, 2026
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Hyperion DeFi, Inc.
Date:
May 6, 2026
By:
/s/ Hyunsu Jung
Hyunsu Jung
Chief Executive Officer
EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: tm2613722d1_ex1-1.htm · Sequence: 2
Exhibit 1.1
2,777,778 Shares of Common Stock
HYPERION DEFI, INC.
UNDERWRITING AGREEMENT
May 5, 2026
Chardan Capital Markets LLC
One Pennsylvania Avenue, Suite 4800
New York, New York 10119
Ladies and Gentlemen:
Introductory.
Hyperion DeFi, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to Chardan Capital Markets
LLC (the “Underwriter”) an aggregate of 2,777,778 shares (the “Firm Shares”) of its common stock,
par value $0.0001 per share (the “Common Stock”). In addition, the Company has granted to the Underwriter an option
to purchase up to an additional 416,666 shares of Common Stock (the “Optional Shares”) as provided in Section 2.
The Firm Shares, and, if and to the extent such option is exercised, the Optional Shares are collectively called the “Offered
Securities.”
The Company has prepared and filed with the Securities
and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3, File No. 333-291570,
including a base prospectus (the “Base Prospectus”) to be used in connection with the public offering and sale of the
Offered Securities. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, in the
form in which it was declared effective under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”), including all documents incorporated or deemed to be incorporated by reference
therein and any information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act,
is called the “Registration Statement.” Any registration statement filed by the Company pursuant to Rule 462(b) under
the Securities Act in connection with the offer and sale of the Offered Securities is called the “Rule 462(b) Registration
Statement,” and from and after the date and time of filing of any such Rule 462(b) Registration Statement the term
“Registration Statement” shall include the Rule 462(b) Registration Statement. The preliminary prospectus supplement
dated May 5, 2026, describing the Offered Securities and the offering thereof (the “Preliminary Prospectus Supplement”),
together with the Base Prospectus, is called the “Preliminary Prospectus,” and the Preliminary Prospectus and any other
prospectus supplement to the Base Prospectus in preliminary form that describes the Offered Securities and the offering thereof and is
used prior to the filing of the Prospectus (as defined below), together with the Base Prospectus, is called a “preliminary prospectus.”
As used herein, the term “Prospectus” shall mean the final prospectus supplement to the Base Prospectus that describes
the Offered Securities and the offering thereof (the “Final Prospectus Supplement”), together with the Base Prospectus,
in the form first used by the Underwriter to confirm sales of the Offered Securities or in the form first made available to the Underwriter
by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act. References herein to the Preliminary
Prospectus, any preliminary prospectus and the Prospectus shall refer to both the prospectus supplement and the Base Prospectus components
of such prospectus. As used herein, “Applicable Time” is 10:15 p.m. (New York City time) on May 5, 2026.
As used herein, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, and
“Time of Sale Prospectus” means the Preliminary Prospectus, as amended or supplemented immediately prior to the Applicable
Time, together with the free writing prospectuses, if any, identified in Schedule B hereto. As used herein, “Road Show”
means a “road show” (as defined in Rule 433 under the Securities Act) relating to the offering of the Offered Securities
contemplated hereby that is a “written communication” (as defined in Rule 405 under the Securities Act). As used herein,
“Section 5(d) Written Communication” means each written communication (within the meaning of Rule 405
under the Securities Act) that is made in reliance on Section 5(d) of the Securities Act by the Company or any person authorized
to act on behalf of the Company to one or more potential investors that are qualified institutional buyers (“QIBs”)
and/or institutions that are accredited investors (“IAIs”), as such terms are respectively defined in Rule 144A
and Rule 501(a) under the Securities Act, to determine whether such investors might have an interest in the offering of the
Offered Securities; “Section 5(d) Oral Communication” means each oral communication, if any, made in reliance
on Section 5(d) of the Securities Act by the Company or any person authorized to act on behalf of the Company made to one or
more QIBs and/or one or more IAIs to determine whether such investors might have an interest in the offering of the Offered Securities;
“Marketing Materials” means any materials or information provided to investors by, or with the approval of, the Company
in connection with the marketing of the offering of the Offered Securities, including any roadshow or investor presentations made to investors
by the Company (whether in person or electronically); and “Permitted Section 5(d) Communication” means the
Section 5(d) Written Communication(s) and Marketing Materials listed on Schedule C attached hereto.
All references in this Agreement to the Registration
Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus and the Prospectus shall include the documents
incorporated or deemed to be incorporated by reference therein. All references in this Agreement to financial statements and schedules
and other information which are “contained,” “included” or “stated” in, or “part of” the
Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the
Base Prospectus, the Time of Sale Prospectus or the Prospectus, and all other references of like import, shall be deemed to mean and include
all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration
Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus,
the Time of Sale Prospectus or the Prospectus, as the case may be. All references in this Agreement to amendments or supplements to the
Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (collectively, the “Exchange Act”) that is or is deemed to be incorporated
by reference in the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, or the Prospectus,
as the case may be. All references in this Agreement to (i) the Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus or the Prospectus, any amendments or supplements to any of the foregoing, or any free writing prospectus,
shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”)
and (ii) the Prospectus shall be deemed to include any “electronic Prospectus” provided for use in connection with the
offering of the Offered Securities as contemplated by Section 3(o) of this Agreement.
The Company hereby confirms its agreements with
the Underwriter as follows:
Section 1. Representations
and Warranties of the Company.
Representations and Warranties of the Company.
The Company hereby represents, warrants and covenants to the Underwriter, as of the date of this Agreement, as of the First Closing Date
(as hereinafter defined) and as of each Option Closing Date (as hereinafter defined), if any, as follows:
(a) The
Registration Statement has become effective under the Securities Act. The Company has complied, to the Commission’s satisfaction,
with all requests of the Commission for additional or supplemental information, if any. No stop order suspending the effectiveness of
the Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated or threatened by the Commission. At the time the Company’s Annual Report on Form 10-K for the
year ended December 31, 2025 (the “Annual Report”) was filed with the Commission, or, if later, at the time the
Registration Statement was originally filed with the Commission, the Company met the then-applicable requirements for use of Form S-3
under the Securities Act. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements
with respect to the aggregate market value of securities being sold pursuant to this offering and during the twelve (12) months prior
to this offering, as set forth in General Instruction I.B.6 of Form S-3. The Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) under the Securities Act objecting to the Company’s use of the automatic shelf registration
form. The Company meets the requirements for use of Form S-3 under the Securities Act specified in Financial Industry Regulatory
Authority (“FINRA”) Conduct Rule 5110(j)(6). The documents incorporated or deemed to be incorporated by reference
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission,
or became effective under the Exchange Act, as the case may be, complied and will comply in all material respects with the requirements
of the Exchange Act.
(b) Each
preliminary prospectus and the Prospectus when filed complied or will comply in all material respects with the Securities Act and, if
filed by electronic transmission pursuant to EDGAR, was identical (except as may be permitted by Regulation S-T under the Securities
Act) to the copy thereof delivered to the Underwriter for use in connection with the offer and sale of the Offered Securities. Each of
the Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective, complied and will comply
in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable
Time, the Time of Sale Prospectus (including any preliminary prospectus wrapper) did not, and at the First Closing Date (as defined in
Section 2) and at each applicable Option Closing Date (as defined in Section 2),
will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The Prospectus (including any Prospectus wrapper), as of
its date, did not, and at the First Closing Date and at each applicable Option Closing Date, will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and warranties set forth in the three immediately preceding sentences
do not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Prospectus
or the Time of Sale Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with written information
relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein, it being understood and
agreed that the only such information consists of the information described in Section 9(b) below.
There are no contracts or other documents required to be described in the Time of Sale Prospectus or the Prospectus or to be filed as
an exhibit to the Registration Statement which have not been described or filed as required.
3
(c) As
of the determination date referenced in Rule 164(h) under the Securities Act, the Company was not, is not or will not be (as
applicable) an “ineligible issuer” in connection with the offering of the Offered Securities pursuant to Rules 164, 405
and 433 under the Securities Act. Each free writing prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act. Each free
writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that
was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements
of Rule 433 under the Securities Act, including timely filing with the Commission, retention and legending, as applicable, and each
such free writing prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of
the Offered Securities did not, does not and will not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Prospectus or any preliminary prospectus unless such information has been superseded or modified
as of such time. Except for the free writing prospectuses, if any, identified in Schedule C, and electronic road shows, if any,
furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior written consent,
prepare, use or refer to, any free writing prospectus. Each Road Show, when considered together with the Time of Sale Prospectus, did
not, as of the Applicable Time, contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
(d) Prior
to the later of (i) the expiration or termination of the option granted to the Underwriter in Section 2(c),
and (ii) the completion of the Underwriter’s distribution of the Offered Securities, the Company has not distributed
and will not distribute any offering material in connection with the offering and sale of the Offered Securities other than the Registration
Statement, the Time of Sale Prospectus, the Prospectus or any free writing prospectus reviewed and consented to by the Underwriter, the
free writing prospectuses, if any, identified on Schedule C hereto and any Permitted Section 5(d) Communications.
(e) All
necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Offered Securities by the Company. This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The
Offered Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered by the Company
against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and the issuance and sale of
the Offered Securities is not subject to any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase
the Offered Securities.
(g) The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which
it is chartered or organized with full corporate power and authority to own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification,
except where the failure to so qualify or be in good standing would not, individually or in the aggregate, (i) have, or reasonably
be expected to have, a material adverse effect on the assets, operations, condition (financial or otherwise), earnings, results of operations,
business, prospects, liabilities or stockholders’ equity of the Company and the Subsidiaries (as defined below), taken as a whole,
or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (clauses (i) and (ii), each
a “Material Adverse Effect”), except as set forth in or contemplated in the Registration Statement, the Time
of Sale Prospectus and the Prospectus (exclusive of any supplement thereto).
4
(h) Each
of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities Act)
(each, a “Subsidiary” and collectively, the “Subsidiaries”), if any, is duly organized, validly
existing as a corporation and in good standing under the laws of its jurisdiction of incorporation, is duly licensed or qualified as a
foreign corporation for transaction of business and in good standing under the laws of each jurisdiction in which its respective ownership
or lease of property or the conduct of its respective business requires such license or qualification, and has all corporate or similar
power and authority necessary to own or hold its respective properties and to conduct its respective businesses as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, except where the failure to be so qualified or in good standing or have such
power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company
owns, directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable
and free of preemptive and similar rights. No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other
Subsidiary of the Company. The Company does not own or control, directly or indirectly, any corporation, association or other entity,
which constitutes a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X under the Exchange Act.
(i) The
Company has an authorized capitalization as set forth in each of the Registration Statement, the Time of Sale Prospectus and Prospectus,
and all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully-paid
and non-assessable, have been issued in compliance with all federal, state and local securities laws and are free and clear of any security
interest, mortgage, pledge, lien, encumbrance or adverse claim, and conform to the descriptions thereof contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus. The description of the securities of the Company in the Registration Statement,
the Time of Sale Prospectus and the Prospectus is complete and accurate in all material respects. Except as disclosed in or contemplated
by the Registration Statement, the Time of Sale Prospectus or the Prospectus, as of the date referred to therein, the Company does not
have outstanding any options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into,
or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock or other securities. None of the outstanding
shares of capital stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase securities of the Company.
(j) There
is no franchise, contract or other document of a character required to be described in the Registration Statement, the Time of Sale Prospectus
or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required.
(k) Neither
the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the Prospectus, will be an “investment company” or an entity “controlled”
by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(l) No
consent, approval, authorization, filing with or order of any court or governmental agency or regulatory body with jurisdiction over the
Company is required in connection with the transactions contemplated herein, except (i) such as have been obtained under the Securities
Act, (ii) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of
the Offered Securities by the Underwriter in the manner contemplated herein and in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (iii) such as may be required by the applicable rules of FINRA, (iv) such as may be required by the
listing rules of Nasdaq; and (v) such consents, approvals, authorizations, filings or orders as shall have been obtained.
5
(m) Neither
the issue and sale of the Offered Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to (i) the charter or by-laws of the Company; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which
the Company is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company, except, in the cases of clauses (ii) and (iii) above, for any such conflict, breach, violation
or default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(n) No
holders of securities of the Company have rights to the registration of such securities under the Registration Statement except for such
as have been effectively waived.
(o) The
consolidated financial statements of the Company and its Subsidiaries included or incorporated by reference in the Registration Statement,
the Time of Sale Prospectus and the Prospectus together with the related notes and schedules, present fairly, in all material respects,
the consolidated financial position of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations,
cash flows and changes in stockholders’ equity of the Company and the Subsidiaries (as defined below) for the periods specified
and have been prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with U.S. Generally
Accepted Accounting Principles (“GAAP”) applied on a consistent basis during the periods involved. To the extent applicable,
any pro forma financial statements, information or data included or included or incorporated by reference in the Registration Statement,
the Time of Sale Prospectus and the Prospectus comply with the requirements of Regulation S-X of the Securities Act, including, without
limitation, Article 8 thereof, fairly present in all material respects the information set forth herein, and the assumptions used
in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate
to give effect to the circumstances referred to therein and the pro forma adjustments have been properly applied to the historical amounts
in the compilation of those statements and data. The other financial and statistical data with respect to the Company and the Subsidiaries
contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus are accurately and
fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company. There are no financial
statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement, the
Time of Sale Prospectus or the Prospectus that are not included or incorporated by reference therein as required. The Company and the
Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits thereto), the Time of Sale Prospectus and the Prospectus. All disclosures
contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and
guidelines applicable thereto.
6
(p) There
is no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or its property pending or, to the knowledge of the Company, threatened that would reasonably be expected to have a Material Adverse Effect,
except as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus (exclusive of any
supplement thereto). To the Company’s knowledge, there are no audits or investigations by or before any court or governmental authority
to which the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject that,
individually or in the aggregate, would have a Material Adverse Effect and, there are no current or pending audits or investigations,
actions, suits or proceedings by or before any governmental authority that are required under the Securities Act to be described in the
Registration Statement, the Time of Sale Prospectus and Prospectus that are not so described.
(q) Except
as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and its Subsidiaries
own or lease all such properties as are necessary to the conduct of their operations as presently conducted.
(r) Neither
the Company nor any of its Subsidiaries is in violation or default of (i) any provision of its charter or bylaws (or other applicable
organizational document); (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement
or other agreement, obligation, condition, covenant or instrument to which the Company or any of its Subsidiaries is a party or bound
or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Subsidiaries
or any of its properties, as applicable, except, in the cases of clauses (ii) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(s) Marcum
LLP or CBIZ CPAs P.C., as applicable (the “Accountant”), whose report on the consolidated financial statements of the
Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K filed with the Commission
and incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus, is and, during the periods
covered by their report, were an independent registered public accounting firm within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of the auditor
independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.
The Accountant has not been engaged by the Company to perform any “prohibited activities” or provided to the Company any “non-audit
services” (as defined in Section 10A of the Exchange Act).
(t) The
Company and each of its Subsidiaries has filed all tax returns that are required to be filed by it or has requested extensions thereof
(except in any case in which the failure so to file would not reasonably be expected to have a Material Adverse Effect), and has paid
all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not reasonably
be expected to have Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency,
penalty or assessment which has been or might be asserted or threatened against it which would have a Material Adverse Effect.
(u) Subsequent
to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
in each case excluding any amendments or supplements thereto subsequent to the date of this Agreement, and except as set forth or contemplated
in the Registration Statement, the Time of Sale Prospectus and the Prospectus: (i) there has been no material adverse change, or
any development that could reasonably be expected to result in a material adverse change, in the condition (financial or otherwise), earnings,
results of operations, business, operations, assets, liabilities or prospects of the Company and the Subsidiaries taken as a whole, whether
or not arising from transactions in the ordinary course of business; (ii) the Company and the Subsidiaries taken as a whole have
not (A) incurred any material liability or obligation, indirect, direct or contingent, including without limitation any losses or
interference with its business from fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance,
or from any strike, labor dispute or court or governmental action, order or decree, that are material to the Company and the Subsidiaries
taken as a whole, (B) entered into any material transactions not in the ordinary course of business or (C) issued or granted
any shares of the Company’s capital stock or securities convertible into or exchangeable or exercisable for or that represent the
right to receive shares of the Company’s capital stock other than (1) under any stock plan or pursuant to outstanding options,
warrants or other convertible securities described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or (2) shares
of common stock issued as in-kind dividends on the Company’s Series A Non-Voting Convertible Preferred Stock; and (iii) there
has not been any material decrease in the share capital or any material increase in any short-term or long-term indebtedness of the Company
and there has been no dividend or distribution of any kind declared, paid or made by the Company or any repurchase or redemption by the
Company or any class of shares, in each case other than as described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
7
(v) No
labor problem or dispute with the employees of the Company or its Subsidiaries exists or, to the Company’s knowledge, is threatened
or imminent that would reasonably be expected to have a Material Adverse Effect.
(w) The
Company and its Subsidiaries carry, or are covered by, insurance from insurers of recognized financial responsibility in such amounts
and covering such risks as the Company reasonably believes are adequate for the conduct of their business; all such policies of insurance
are in full force and effect.
(x) The
Company and its Subsidiaries possess all licenses, certificates, permits and other authorizations required to be issued by all applicable
authorities necessary to conduct their business, except where the failure to possess such licenses, permits and other authorizations would
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and the Company has not received any notice
of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would not reasonably be expected to have a Material Adverse Effect.
(y) The
Company maintains a system of internal accounting controls designed to provide reasonable assurances that (i) transactions are executed
in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with United States generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. The Company’s internal control over financial reporting are effective and the Company is not aware of any material
weakness in their internal control over financial reporting (other than as set forth in the Prospectus). Since the date of the latest
audited financial statements of the Company included in the Prospectus, there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting (other than as set forth in the Prospectus).
8
(z) The
Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and
designed such disclosure controls and procedures to ensure that material information relating to the Company and each of its Subsidiaries
is made known to the certifying officers by others within those entities, particularly during the period in which the Company’s
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s certifying
officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as of a date within 90 days prior
to the filing date of the Form 10-K for the fiscal year most recently ended (such date, the “Evaluation Date”).
The Company presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date and the disclosure controls
and procedures are effective. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls
(as such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other
factors that could significantly affect the Company’s internal controls.
(aa) Neither
the Company, nor any of the Subsidiaries, nor any of their respective directors, officers or controlling persons, has taken, directly
or indirectly, (i) any action designed, or that has constituted or would reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the price of (A) Hyperliquid (HYPE) or (B) any security of the
Company to facilitate the sale or resale of the Offered Securities or (ii) any action designed to or that might constitute or reasonably
be expected to cause or result in a violation of Regulation M under the Exchange Act.
(bb) The
Company is (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”), (ii) has received and is in compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct its business and (iii) has not received notice of any actual or potential liability under any environmental
law, except in the case of (i), (ii) and (iii), where such non-compliance with Environmental Laws, failure to receive required permits,
licenses or other approvals, or liability would not, individually or in the aggregate, be reasonably expected to have a Material Adverse
Effect. The Company has not been named as a “potentially responsible party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(cc) None
of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards
of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and
the regulations and published interpretations thereunder with respect to a Plan, determined without regard to any waiver of such obligations
or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor,
the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect
to the employment or compensation of employees by any of the Company that could have a Material Adverse Effect; (iii) any breach
of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation
of employees by the Company that would reasonably be expected to have a Material Adverse Effect. None of the following events has occurred
or is reasonably likely to occur: (w) a material increase in the aggregate amount of contributions required to be made to all Plans
in the current fiscal year of the Company compared to the amount of such contributions made in the most recently completed fiscal year
of the Company; (x) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning
of Statement of Financial Accounting Standards 106) of the Company compared to the amount of such obligations in the most recently completed
fiscal year of the Company; (y) any event or condition giving rise to a liability under Title IV of ERISA that could have a Material
Adverse Effect; or (z) the filing of a claim by one or more employees or former employees of the Company related to their employment
that could have a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan (within the
meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company may have any liability.
9
(dd) There
is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes-Oxley Act and the rules and regulations promulgated in connection therewith, including
Section 402 relating to loans and Sections 302 and 906 relating to certifications. Each of the principal executive officer and the
principal financial officer of the Company (or each former principal executive officer of the Company and each former principal financial
officer of the Company as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect
to all reports, schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission. For
purposes of the preceding sentence, “principal executive officer” and “principal financial officer” shall have
the meanings given to such terms in the Sarbanes-Oxley Act.
(ee) (i) Neither
the Company nor the Subsidiaries, nor any director, officer, or employee of the Company or any Subsidiary, nor, to the Company’s
knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has, in the past five years, made any
unlawful contributions to any candidate for any political office (or failed fully to disclose any contribution in violation of applicable
law) or made any contribution or other payment to any official of, or candidate for, any federal, state, municipal, or foreign office
or other person charged with similar public or quasi-public duty in violation of any applicable law or of the character required to be
disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus; (ii) no relationship, direct or indirect,
exists between or among the Company or any Subsidiary or any affiliate of any of them, on the one hand, and the directors, officers and
stockholders of the Company or any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus that is not so described; (iii) except as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, there are no material outstanding loans or advances or material guarantees
of indebtedness by the Company or any Subsidiary to or for the benefit of any of their respective officers or directors or any of the
members of the families of any of them; and (iv) the Company has not offered, or caused any placement agents to offer, Common Stock
to any person with the intent to influence unlawfully (A) a customer or supplier of the Company or any Subsidiary to alter the customer’s
or supplier’s level or type of business with the Company or any Subsidiary or (B) a trade journalist or publication to write
or publish favorable information about the Company or any Subsidiary or any of their respective products or services, and, (v) neither
the Company nor any Subsidiary, nor any director, officer or employee of the Company or any Subsidiary, nor, to the Company’s knowledge,
any agents, affiliate or other person acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any
applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, as amended, or any other
applicable anti-bribery or anti-corruption law (collectively, “Anti-Corruption Laws”), (B) promised, offered,
provided, attempted to provide or authorized the provision of anything of value, directly or indirectly, to any person for the purpose
of obtaining or retaining business, influencing any act or decision of the recipient, or securing any improper advantage; or (C) made
any payment of funds of the Company or any Subsidiary or received or retained any funds in violation of any Anti-Corruption Laws. The
Company and its Subsidiaries and, to the knowledge of the Company, the Company’s affiliates have conducted their respective businesses
in compliance with the Anti-Corruption Laws and have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
10
(ff) The
operations of the Company and its Subsidiaries are and have been conducted at all times in material compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(gg) (i) The
Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”), nor any director,
officer, nor to the Company’s knowledge, any employee, agent, affiliate or representative of the Entity, is a government, individual,
or entity (in this paragraph (gg), “Person”) that is, or is owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities, including,
without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions
Evaders List (as amended, collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory
(including, without limitation, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the so-called Luhansk
People’s Republic, the Crimea Region of Ukraine, the non-government controlled areas of the Zaporizhzhia and Kherson Regions of
Ukraine (or any other Covered Region of Ukraine identified pursuant to Executive Order 14065)) (the “Sanctioned Countries”).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions or is a Sanctioned Country; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
during the applicable statute of limitations period, it has not engaged in, is not now engaging in, and will not engage in, any dealings
or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject
of Sanctions or is or was a Sanctioned Country.
11
(hh) Except
as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, as applicable, the Company (i) is and
at all times has been in compliance in all respects with all applicable 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 applicable local, state, federal, national,
supranational and foreign laws relating to the regulation of the Company (collectively, the “Applicable Laws”); (ii) has
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) possesses all Authorizations
and such Authorizations are valid and in full force and effect in all respects and are not in violation of any term of any such Authorizations;
(iv) has 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) has 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) has filed, obtained, maintained or submitted all 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) is
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, except in each of (i), (iii) and (vi), where such noncompliance would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ii) The
clinical and pre-clinical studies and trials conducted by or, to the knowledge of the Company, on behalf of or sponsored by the Company,
or in which the Company has participated, that are described in the Registration Statement, the Time of Sale Prospectus and the Prospectus
or the results of which are referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus, as applicable,
were and, if still pending, are being conducted in all material respects in accordance with standard medical and scientific research procedures
and all applicable statutes, rules and regulations of the FDA and comparable drug regulatory agencies outside of the United States
to which it is subject (collectively, the “Regulatory Authorities”), including, without limitation, 21 C.F.R. Parts
50, 54, 56, 58, and 312, and current Good Clinical Practices and Good Laboratory Practices; the descriptions in the Registration Statement,
the Time of Sale Prospectus or the Prospectus of the results of such studies and trials are accurate and complete in all material respects
and fairly present the data derived from such studies and trials; the Company has no knowledge of any other trials the results of which
are inconsistent with or otherwise call into question the results described or referred to in the Registration Statement, the Time of
Sale Prospectus and the Prospectus; the Company has operated and is currently in compliance in all material respects with all applicable
statutes, rules and regulations of the Regulatory Authorities; the Company has not received any written notices, correspondence or
other communication from the Regulatory Authorities or any applicable governmental authority requiring or threatening the termination
or suspension of any clinical or pre-clinical trials that are described in the Registration Statement, the Time of Sale Prospectus and
the Prospectus or the results of which are referred to in the Registration Statement, the Time of Sale Prospectus or the Prospectus, other
than ordinary course communications with respect to pending clinical trials, and, to the Company’s knowledge, there are no reasonable
grounds for same.
12
(jj) Except
as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company owns, possesses,
licenses or has other rights to use, all patents, patent applications, trade and service marks, trade and service mark registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of the Company’s business as now conducted or as proposed
in the Registration Statement, the Time of Sale Prospectus and Prospectus to be conducted. To the Company’s knowledge, (i) there
are no rights of third parties to any such Intellectual Property; (ii) there is no infringement by third parties of any such Intellectual
Property; (iii) there is no pending or threatened action, suit, proceeding or claim by others challenging the Company’s rights
in or to, or the validity or scope of, any such Intellectual Property; and (iv) there is no pending or threatened action, suit, proceeding
or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary
rights of others.
(kk) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company (i) does not have any material
lending or other material relationship with any bank or lending affiliate of the Underwriter and (ii) does not intend to use any
of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of the Underwriter.
(ll) At
the time the Registration Statement originally becomes or became effective, and at the time the Company’s most recent Annual Report
on Form 10-K was filed with the Commission, the Company met the then applicable requirements for the use of Form S-3 under the
Securities Act, including, but not limited to, General Instruction I.B.1 or I.B.6 of Form S-3. The Company is not a shell company
(as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously and
if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6 of
Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.
(mm) There
are no affiliations with FINRA among the Company’s officers, directors or, to the best of the knowledge of the Company, any five
percent or greater stockholder of the Company, except as set forth in the Registration Statement or otherwise disclosed in writing to
the Underwriter.
(nn) The
statistical and market related data included in the Registration Statement, the Time of Sale Prospectus or the Prospectus are based on
or derived from sources that the Company believes to be reliable and accurate or represent the Company’s good faith estimates that
are made on the basis of data derived from such sources.
(oo) No
person (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act) has the right to act as an underwriter
or as a financial advisor to the Company in connection with the offer and sale of the Offered Securities hereunder, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of the Offered Securities as contemplated hereby or otherwise.
Except for the Underwriter, there is no broker, finder or other party that is entitled to receive from the Company or any of its Subsidiaries
(as defined below) any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this
Agreement.
(pp) Neither
the Company nor any of the Subsidiaries is required to register as a “broker” or “dealer” in accordance with the
provisions of the Exchange Act and do not, directly or indirectly through one or more intermediaries, control or have any other association
with (within the meaning of Article I of the By-laws of FINRA) any member firm of FINRA. No relationship, direct or indirect, exists
between or among the Company, on the one hand, and the directors, officers or shareholders of the Company, on the other hand, which is
required by the rules of FINRA to be described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, which
is not so described. All of the information (including, but not limited to, information regarding affiliations, security ownership and
trading activity) provided to the Underwriter or its counsel by the Company, its officers and directors and the holders of any securities
(debt or equity) or warrants, options or rights to acquire any securities of the Company in connection with the filing to be made and
other supplemental information to be provided to FINRA pursuant to FINRA Rule 5110 in connection with the transactions contemplated
by this Agreement is true, complete and correct.
13
(qq) Each
financial or operational projection or other “forward-looking statement” (as defined by Section 27A of the Securities
Act or Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus (i) was so included by the
Company in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions, estimates and other
applicable facts and circumstances and (ii) as required, is accompanied by meaningful cautionary statements identifying those factors
that could cause actual results to differ materially from those in such forward-looking statement.
(rr) Any
certificate signed by any officer of the Company and delivered to the Underwriter or counsel for the Underwriter in connection with the
offering of the Offered Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to the
Underwriter.
(ss) There
are no transactions, arrangements and other relationships between and/or among the Company, and/or any of its affiliates and any unconsolidated
entity, including, but not limited to, any structured finance, special purpose or limited purpose entity (each, an “Off-Balance
Sheet Transaction”) that could reasonably be expected to affect materially the Company’s liquidity or the availability
of or requirements for its capital resources, including those Off-Balance Sheet Transactions described in the Commission’s Statement
about Management’s Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61),
required to be described in the Registration Statement, the Time of Sale Prospectus and the Prospectus which have not been described as
required.
(tt) Except
as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) no person, as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has the right, contractual
or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other capital stock or other securities
of the Company (other than upon the exercise of options, warrants or other securities convertible or exercisable into shares of Common
Stock outstanding on the date hereof, or upon the grant or exercise of equity awards that may be granted from time to time under the Company
Stock Plans or benefit plans), (ii) no Person has any preemptive rights, resale rights, rights of first refusal, rights of co-sale,
or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Common Stock or shares of
any other capital stock or other securities of the Company, (iii) no Person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Common Stock, and (iv) no Person has the right, contractual or
otherwise, to require the Company to register under the Securities Act any Common Stock or shares of any other capital stock or other
securities of the Company, or to include any such shares or other securities in the Registration Statement, the Time of Sale Prospectus
or the Prospectus, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Offered Securities
as contemplated thereby or otherwise.
(uu) All
material agreements between the Company and third parties expressly referenced in the Registration Statement, the Time of Sale Prospectus
and Prospectus are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except to
the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements
may be limited by federal or state securities laws or public policy considerations in respect thereof.
14
(vv) Neither
the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed money or on any rental on one or
more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect. The Company has not filed
a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report on Form 10-K,
indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted on
any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in
the aggregate, would have a Material Adverse Effect.
(ww) Except
as set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus, the Company and its Subsidiaries have good
and marketable title in fee simple to all items of real property owned by them, good and valid title to all personal property described
in the Registration Statement, the Time of Sale Prospectus or Prospectus as being owned by them, in each case free and clear of all liens,
encumbrances and claims, except those matters that (i) do not materially interfere with the use made and proposed to be made of such
property by the Company and any of its Subsidiaries or (ii) would not, individually or in the aggregate, have a Material Adverse
Effect. Any real or personal property described in the Registration Statement, the Time of Sale Prospectus or Prospectus as being leased
by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except those that (A) do
not materially interfere with the use made or proposed to be made of such property by the Company or any of its Subsidiaries or (B) would
not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. Each of the properties of the Company
and its Subsidiaries complies with all applicable codes, laws and regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to such properties), except if and to the extent disclosed in the Registration Statement,
the Time of Sale Prospectus or Prospectus or except for such failures to comply that would not, individually or in the aggregate, reasonably
be expected to interfere in any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries
or otherwise have a Material Adverse Effect. None of the Company or its Subsidiaries has received from any Governmental Authorities any
notice of any condemnation of, or zoning change affecting, the properties of the Company and its Subsidiaries, and to the Company’s
knowledge, there is no such condemnation or zoning change which is threatened, except for such that would not reasonably be expected to
interfere in any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise
have a Material Adverse Effect, individually or in the aggregate.
(xx) The
Company understands that the Underwriter is a full service securities firm and as such from time to time, subject to applicable securities
laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities
of the companies that may be the subject of the transactions contemplated by this Agreement. The Company further acknowledges that the
Underwriter’s research analysts and research departments are required to and should be independent from its investment banking division
and are subject to certain regulations and internal policies, and as such the Underwriter’s research analysts may hold views and
make statements or investment recommendations and/or publish research reports with respect to the Company or the offering contemplated
by this Agreement that differ from the views of its investment banking division.
(yy) Neither
the issuance, sale and delivery of the Offered Securities nor the application of the proceeds thereof by the Company as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus will violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board of Governors.
(zz)
On the First Closing Date and each Option Closing Date, all stock transfer or other
similar taxes which are required to be paid in connection with the sale and transfer of the Offered Securities to be sold to the
Underwriter hereunder will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be
or will have been fully complied with.
15
(aaa) Except
as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company’s
and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and each of its Subsidiaries as currently
conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company
and its Subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies,
procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data, including all “Personal Data” (as defined below) and all sensitive, confidential
or regulated data (“Confidential Data”) used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or
tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account
number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission
Act, as amended; (iii) “personal data” as defined by the General Data Protection Regulation (“GDPR”);
(iv) any information which would qualify as “protected health information” under the Health Insurance Portability and
Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
(v) any “personal information” as defined by the California Consumer Privacy Act (“CCPA”); and (vi) any
other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis
of any data related to an identified person’s health or sexual orientation. There have been no breaches, violations, outages or
unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify
any other person, nor any incidents under internal review or investigations relating to the same. The Company and its Subsidiaries are
presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems, Confidential Data, and Personal Data and to the protection of such IT Systems, Confidential Data, and Personal Data from
unauthorized use, access, misappropriation or modification. The Company and its Subsidiaries are, and at all prior times were, in material
compliance with all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, CCPA,
and the European Union GDPR (EU 2016/679) (collectively, the “Privacy Laws”). To ensure compliance with the Privacy
Laws, the Company has in place, complies with, and takes appropriate steps to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, processing, disclosure, handling, and analysis
of Personal Data and Confidential Data (the “Policies”). The Company has at all times made all disclosures to users
or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in
any Policy have been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect.
The Company further certifies that neither it nor any subsidiary: (i) has received notice of any actual or potential liability under
or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would
reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation,
remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that
imposes any obligation or liability under any Privacy Law.
(bbb) The
Company is not in or subject to a bankruptcy or insolvency proceeding in any jurisdiction.
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(ccc) Crypto
Assets and Related Third-Party Arrangements.
(i) The
Company owns, directly or indirectly, and has good and valid title to all material Crypto Assets (as defined below) reflected in its financial
statements or otherwise held in connection with its business, free and clear of all liens, encumbrances, pledges, and security interests,
other than as disclosed in the Prospectus.
(ii) The
Company holds Crypto Assets either (i) in self-custodied digital wallets (using HSM/MPC security infrastructure provided by custody
infrastructure providers) or cold storage (such as hardware wallets) under its sole control, or (ii) through custodial arrangements
with Anchorage Digital Bank (the “Custodian”), which is subject to a written agreement with the Company that includes
provisions addressing fiduciary duties (as applicable), asset segregation, loss and theft protections, incident reporting, and compliance
with applicable law. To the Company’s knowledge, the Custodian is duly authorized or registered, as required, under applicable U.S.
federal or state law to perform digital asset custody services and complies in all material respects with applicable regulatory requirements.
(iii) The
Company has implemented internal controls, security protocols, and oversight procedures designed to safeguard its Crypto Assets, manage
operational and custodial risks, and ensure accurate recordkeeping.
(iv) The
Company is in compliance with all applicable laws, rules, and regulations (including those administered by the Commission, Commodities
Futures Trading Commission, Financial Crimes Enforcement Network, OFAC and applicable state regulators) governing the holding, custody,
transfer, and management of Crypto Assets except to the extent that any noncompliance would not result in a Material Adverse Effect. To
the Company’s knowledge, no part of its Crypto Assets portfolio has been used in violation of applicable Money Laundering Laws,
counter-terrorist financing, or economic Sanctions laws.
(v) The
Company has not received any written notice from any governmental or regulatory authority asserting that its Crypto Asset activities,
or those of any of the Custodian, are or have been in violation of law. The Company accounts for its Crypto Assets and related arrangements
in accordance with GAAP, including current accounting guidance, and its disclosures reflect the nature of custodial relationships, risk
of loss, and any arrangements that permit third parties to transfer or encumber Crypto Assets of the Company without the Company’s
prior written consent, or that otherwise would result in such party having “control” over the Company’s Crypto Assets
as defined under applicable law.
(vi) The
Company is, and at all times has been, in compliance with all applicable laws, statutes, rules and regulations applicable to the
Company’s treasury reserve policy and the Company’s cryptocurrency treasury operations, except to the extent that any noncompliance
would not result in a Material Adverse Effect.
For purposes of this Agreement, “Crypto
Assets” means digital assets that are issued or transferred using distributed ledger or blockchain technology, including but
not limited to cryptocurrencies (e.g., Bitcoin, Ethereum), Zcash, stablecoins, and other fungible or non-fungible tokens held or used
by the Company.
17
(ddd) There
are no business relationships or related-party transactions involving the Company or any other person required to be described in the
Registration Statement, the Time of Sale Prospectus or the Prospectus that have not been described as required.
(eee) The
Company has furnished to the Underwriter a letter agreement in the form attached hereto as Exhibit A (the “Lock-up Agreement”)
from each of the persons listed on Exhibit B. Such Exhibit B lists under an appropriate caption the directors
and officers of the Company. If any additional persons shall become directors or officers of the Company prior to the end of the Company
Lock-up Period (as defined below), the Company shall cause each such person, prior to or contemporaneously with their appointment or election
as a director or officer of the Company, to execute and deliver a Lock-up Agreement to the Underwriter.
Section 2. Purchase,
Sale and Delivery of the Offered Securities.
(a) The
Firm Shares. Upon the terms herein set forth, the Company agrees to issue and sell to the Underwriter an aggregate of 2,777,778
Firm Shares. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions
herein set forth, the Underwriter agrees to purchase from the Company the number of Firm Shares set forth opposite its name on Schedule
A. The purchase price per Firm Share to be paid by the Underwriter to the Company shall be $3.384 (the “Share Purchase Price”).
(b) The
First Closing Date. Delivery of certificates for the Firm Shares to be purchased by the Underwriter and payment therefor shall
be made at the offices of Goodwin Procter LLP (or such other place as may be agreed to by the Company and the Underwriter) at 9:00 a.m. New
York City time, on May 7, 2026, or such other time and date not later than 1:30 p.m. New York City time, on May 15,
2026 as the Underwriter shall designate by notice to the Company (the time and date of such closing are called the “First Closing
Date”). The Company hereby acknowledges that circumstances under which the Underwriter may provide notice to postpone the First
Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Underwriter to recirculate
to the public copies of an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 11.
(c) The
Optional Shares; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the Underwriter to purchase
up to an aggregate of 416,666 Optional Shares at the Share Purchase Price, less an amount per share equal to any dividend or distribution
declared by the Company and payable on the Firm Shares but not payable on Optional Shares. The option granted hereunder may be exercised
at any time and from time to time in whole or in part upon notice by the Underwriter to the Company, which notice may be given at any
time within 30 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Shares
as to which the Underwriter is exercising the option and (ii) the time, date and place at which the Optional Shares will be delivered
(which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date
are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery
of the Firm Shares and such Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called an
“Option Closing Date,” and shall be determined by the Underwriter and shall not be earlier than one or later than five
full business days after delivery of such notice of exercise. The Underwriter may cancel the option at any time prior to its expiration
by giving written notice of such cancellation to the Company.
(d) Public
Offering of the Offered Securities. The Underwriter hereby advises the Company that it intends to offer for sale to the public,
initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Offered Securities
as soon after this Agreement has been executed as the Underwriter, in its sole judgment, has determined is advisable and practicable.
18
(e) Payment
for the Offered Securities. (i) Payment for the Offered Securities to be sold by the Company shall be made at the First Closing
Date (and, if applicable, at each Option Closing Date) by wire transfer of immediately available funds to the order of the Company.
(ii) It
is understood that the Underwriter has been authorized, for its own account, to accept delivery of and receipt for, and make payment of
the purchase price for, the Firm Shares and any Optional Shares the Underwriter has agreed to purchase.
(f) Delivery
of the Offered Securities. The Company shall deliver, or cause to be delivered through the facilities of Depositary Trust Company
(“DTC”) unless the Underwriter shall otherwise instruct, to the Underwriter for the accounts of the Underwriter the
Firm Shares in accordance with the Underwriter’s instructions at the First Closing Date, against release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The Company shall also deliver, or cause to be delivered through the facilities
of DTC unless the Underwriter shall otherwise instruct, to the Underwriter for the account of the Underwriter, the Optional Shares the
Underwriter has agreed to purchase at the First Closing Date or the applicable Option Closing Date, as the case may be, against the release
of a wire transfer of immediately available funds for the amount of the purchase price therefor. If the Underwriter so elects, delivery
of the Offered Securities may be made by credit to the account designated by the Underwriter through The Depository Trust Company’s
full fast transfer or DWAC programs. If the Underwriter so elects, the certificates for the Offered Securities shall be in definitive
form and registered in such names and denominations as the Underwriter shall have requested at least two full business days prior to the
First Closing Date (or the applicable Option Closing Date, as the case may be) and shall be made available for inspection on the business
day preceding the First Closing Date (or the applicable Option Closing Date, as the case may be) at a location in New York City as the
Underwriter may designate.
Section 3. Additional
Covenants of the Company.
The Company further covenants and agrees with the
Underwriter as follows:
(a) [Reserved]
(b) Delivery
of Registration Statement, Time of Sale Prospectus and Prospectus. Upon the request of the Underwriter, the Company shall furnish
to you in New York City, without charge, during the period when a prospectus relating to the Offered Securities is required by the Securities
Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection
with sales of the Offered Securities, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(c) Underwriter’s
Review of Proposed Amendments and Supplements. During the period when a prospectus relating to the Offered Securities is required
by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule), the Company (i) will furnish to the Underwriter for review, a reasonable period of time prior to the proposed time of filing
of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or supplement and (ii) will
not amend or supplement the Registration Statement (including any amendment or supplement through incorporation of any report filed under
the Exchange Act) without the Underwriter’s prior written consent, which will not be unreasonably withheld, conditioned or delayed.
Prior to amending or supplementing any preliminary prospectus, the Time of Sale Prospectus or the Prospectus (including any amendment
or supplement through incorporation of any report filed under the Exchange Act), the Company shall furnish to the Underwriter for review,
a reasonable amount of time prior to the time of filing or use of the proposed amendment or supplement, a copy of each such proposed amendment
or supplement. The Company shall not file or use any such proposed amendment or supplement without the Underwriter’s prior written
consent, which will not be unreasonably withheld, conditioned or delayed. The Company shall file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
19
(d) Free
Writing Prospectuses. The Company shall furnish to the Underwriter for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto prepared by or on
behalf of, used by, or referred to by the Company, and the Company shall not file, use or refer to any proposed free writing prospectus
or any amendment or supplement thereto without the Underwriter’s prior written consent. The Company shall furnish to the Underwriter,
without charge, as many copies of any free writing prospectus prepared by or on behalf of, used by or referred to by the Company as the
Underwriter may reasonably request. If at any time when a prospectus is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Offered Securities
(but in any event if at any time through and including the First Closing Date) there occurred or occurs an event or development as a result
of which any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company conflicted or would conflict
with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing
at such time, not misleading, the Company shall promptly amend or supplement such free writing prospectus to eliminate or correct such
conflict or so that the statements in such free writing prospectus as so amended or supplemented will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
prevailing at such time, not misleading, as the case may be; provided, however, that prior to amending or supplementing any such
free writing prospectus, the Company shall furnish to the Underwriter for review, a reasonable amount of time prior to the proposed time
of filing or use thereof, a copy of such proposed amended or supplemented free writing prospectus, and the Company shall not file, use
or refer to any such amended or supplemented free writing prospectus without the Underwriter’s prior written consent.
(e) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any action that would result in the Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared
by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is being used to solicit offers to buy the Offered
Securities at a time when the Prospectus is not yet available to prospective purchasers, and any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale Prospectus does not include
an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances when delivered to a prospective purchaser, not misleading, or if any event shall occur or condition exist as a result
of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement, or if, in the reasonable
opinion of counsel for the Underwriter, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law,
the Company shall (subject to Section 3(b) and Section 3(c) hereof) promptly prepare, file with the Commission and
furnish, at its own expense, to the Underwriter and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus
so that the statements in the Time of Sale Prospectus as so amended or supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when delivered
to a prospective purchaser, not misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict
with the information contained in the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will
comply with applicable law.
20
(g) Certain
Notifications and Required Actions. After the date of this Agreement, the Company shall promptly advise the Underwriter in writing
of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission relating to the
Registration Statement; (ii) the time and date of any filing of any post-effective amendment to the Registration Statement or any
amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus; (iii) the
time and date that any post-effective amendment to the Registration Statement becomes effective; and (iv) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any amendment
or supplement to any preliminary prospectus, the Time of Sale Prospectus or the Prospectus or of any order preventing or suspending the
use of any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus, or of any proceedings to
remove, suspend or terminate from listing or quotation the Offered Securities from any securities exchange upon which they are listed
for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes.
If the Commission shall enter any such stop order at any time, the Company will use its commercially reasonable efforts to obtain the
lifting of such order at the earliest practicable moment. Additionally, the Company agrees that it shall comply with all applicable provisions
of Rule 424(b), Rule 433 and Rule 430B under the Securities Act and will use its reasonable efforts to confirm that any
filings made by the Company under Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(h) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser,
not misleading, or if in the reasonable opinion of the Underwriter or counsel for the Underwriter it is otherwise necessary to amend or
supplement the Prospectus to comply with applicable law, the Company agrees (subject to Section 3(b) and Section 3(c) hereof)
to promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request, amendments
or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule) to a purchaser, not misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. Neither the
Underwriter’s consent to, nor delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s
obligations under Section 3(b) or Section 3(c).
(i) Blue
Sky Compliance. The Company shall cooperate with the Underwriter and counsel for the Underwriter to qualify or register the Offered
Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions
designated by the Underwriter, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect
so long as required for the distribution of the Offered Securities. The Company shall not be required to qualify as a foreign corporation
or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified
or where it would be subject to taxation as a foreign corporation. The Company will advise the Underwriter promptly of the suspension
of the qualification or registration of (or any such exemption relating to) the Offered Securities for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending
such qualification, registration or exemption, the Company shall use its commercially reasonable efforts to obtain the withdrawal thereof
at the earliest practicable moment.
21
(j) Use
of Proceeds. The Company shall apply the net proceeds from the sale of the Offered Securities sold by it in the manner described
under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(k) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Offered Securities.
(l) Earnings
Statement. The Company will make generally available to its security holders and to the Underwriter as soon as practicable an
earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter of
the Company commencing after the date of this Agreement that will satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
(m) Continued
Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion
of the distribution of the Offered Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Prospectus
and the Prospectus. Without limiting the generality of the foregoing, the Company will, during the period when a prospectus relating to
the Offered Securities is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172
under the Securities Act or any similar rule), file on a timely basis with the Commission and the NASDAQ all reports and documents required
to be filed under the Exchange Act.
(n) Listing.
The Company will use its commercially reasonable efforts to list, subject to notice of issuance, the Offered Securities on the NASDAQ.
(o) Company
to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet. If requested by the Underwriter,
the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement,
to the Underwriter an “electronic Prospectus” to be used by the Underwriter in connection with the offering and sale
of the Offered Securities. As used herein, the term “electronic Prospectus” means a form of Prospectus, and any amendment
or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory
to the Underwriter, that may be transmitted electronically by the Underwriter to offerees and purchasers of the Offered Securities; (ii) it
shall disclose the same information as the paper Prospectus, except to the extent that graphic and image material cannot be disseminated
electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate
narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a
paper format or an electronic format, satisfactory to the Underwriter, that will allow investors to store and have continuously ready
access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet
as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to
EDGAR or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon
receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly, without
charge, a paper copy of the Prospectus.
22
(p) Agreement
Not to Offer or Sell Additional Shares of Common Stock. During the period commencing on and including the date hereof and continuing
through and including the 15th day following the date of the Prospectus (such period being referred to herein as the “Lock-up
Period”), the Company will not, without the prior written consent of the Underwriter (which consent may not be unreasonably
withheld), directly or indirectly: (i) sell, offer to sell, contract to sell or lend any shares of Common Stock or Related Securities
(as defined below); (ii) effect any short sale, or establish or increase any “put equivalent position” (as defined in
Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any “call equivalent position” (as defined in Rule 16a-1(b) under
the Exchange Act) of any shares of Common Stock or Related Securities; (iii) pledge, hypothecate or grant any security interest in
any shares of Common Stock or Related Securities; (iv) in any other way transfer or dispose of any shares of Common Stock or Related
Securities; (v) enter into any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic
risk of ownership of any shares of Common Stock or Related Securities, regardless of whether any such transaction is to be settled in
securities, in cash or otherwise; (vi) announce the offering of any shares of Common Stock or Related Securities; (vii) submit
or file any registration statement under the Securities Act in respect of any shares of Common Stock or Related Securities (other than
as contemplated by this Agreement with respect to the Offered Securities or a registration statement on Form S-8); or (viii) publicly
announce the intention to do any of the foregoing; provided, however, that the Company may (A) effect the transactions contemplated
hereby, (B) issue shares of Common Stock or options to purchase shares of Common Stock, or issue shares of Common Stock upon exercise
of options, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, (C) issue shares of Common Stock pursuant to the conversion of securities or the exercise
of warrants, which securities or warrants are outstanding on the date hereof and described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, (D) adopt a new equity incentive plan, including an inducement plan, file a registration statement
on Form S-8 under the Securities Act to register the offer and sale of securities to be issued pursuant to such new equity incentive
plan, and issue press releases (if applicable pursuant to an inducement plan) and securities pursuant to such new equity incentive plan
(including, without limitation, the issuance of shares of Common Stock upon the exercise of options or other securities issued pursuant
to such new equity incentive plan), provided that any such recipient who is an officer or director of the Company shall be contractually
prohibited from selling, offering, disposing of or otherwise transferring any such shares of Common Stock or Related Securities during
the remainder of the Lock-up Period, (E) facilitate the transfer of shares of Common Stock under a trading plan pursuant to Rule 10b5-1
under the Exchange Act (a “Trading Plan”) that is existing on the date hereof which has been provided to the Underwriter
or its legal counsel, (F) facilitate the establishment of a trading plan on behalf of a shareholder, officer or director of the Company
pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (x) such plan does
not provide for the transfer of shares of Common Stock during the Lock-up Period and (y) to the extent a public announcement or filing
under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement
or filing shall include a statement to the effect that no transfer of shares of Common Stock may be made under such plan during the Lock-up
Period, and (G) upon the sixth day after the First Closing Date, the Company may issue shares of Common Stock pursuant to an existing
or future at the market sales agreement, including the existing at the market sales agreement with Cantor Fitzgerald & Co. and
Chardan Capital Markets LLC, through which the Company can sell shares of common stock by means of at the market offerings from time to
time (an “ATM Program”); provided, that the Company may issue shares of Common Stock pursuant to an ATM Program at
any time after the First Closing Date if the sale and issuance of such shares of Common Stock are consummated at a purchase price per
share that is greater than the public offering price of the Firm Shares as set forth on the front cover page of the Prospectus. For
purposes of the foregoing, “Related Securities” shall mean any options or warrants or other rights to acquire shares
of Common Stock or any securities exchangeable or exercisable for or convertible into shares of Common Stock, or to acquire other securities
or rights ultimately exchangeable or exercisable for, or convertible into, shares of Common Stock.
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(q) Future
Reports to the Underwriter. During the period of five years hereafter, the Company will furnish to the Underwriter at Chardan
Capital Markets LLC, One Pennsylvania Plaza, Suite 4800, New York, New York 10119, Attention: Legal Department, Email: legal@chardan.com
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements of income, stockholders’ equity and cash flows for the
year then ended and the opinion thereon of the Company’s independent public or certified public accountants; (ii) as soon
as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Current Report on Form 8-K or other report filed by the Company with the Commission, FINRA or any securities exchange; and (iii) as
soon as available, copies of any report or communication of the Company furnished or made available generally to holders of its capital
stock; provided, however, that the requirements of this Section 3(q) shall be satisfied to the extent that such reports,
statement, communications, financial statements or other documents are available on EDGAR.
(r) Investment
Limitation. The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Offered Securities
in such a manner as would require the Company to register as an investment company under the Investment Company Act.
(s) No
Stabilization or Manipulation; Compliance with Regulation M. The Company will not take, and will ensure that no affiliate of the
Company will take, directly or indirectly, any action designed to or that might cause or result in stabilization or manipulation of the
price of the shares of Common Stock or any reference security with respect to the shares of Common Stock, whether to facilitate the sale
or resale of the Offered Securities or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all applicable
provisions of Regulation M.
(t) Enforce
Lock-Up Agreements. During the Lock-up Period, the Company will use commercially reasonable efforts to enforce all agreements
between the Company and any of its executive officers and directors that restrict or prohibit, expressly or in operation, the offer, sale
or transfer of shares of Common Stock or Related Securities or any of the other actions restricted or prohibited under the terms of the
form of Lock-up Agreement. In addition, the Company will direct the transfer agent to place stop transfer restrictions upon any such securities
of the Company that are bound by such “lock-up” agreements for the duration of the periods contemplated in such agreements,
including, without limitation, “lock-up” agreements entered into by the Company’s officers and directors pursuant to
Section 6(h) hereof.
(u) Company
to Provide Interim Financial Statements. Prior to the First Closing Date and each applicable Option Closing Date, the Company
will furnish the Underwriter, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial
statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration
Statement and the Prospectus; provided however, that the requirements of this Section 3(u) shall be satisfied to the extent
that such reports, statements, communications, financial statements or other documents are available on EDGAR.
(v) Amendments
and Supplements to Permitted Section 5(d) Communications. If at any time following the distribution of any Permitted
Section 5(d) Communication, there occurred or occurs an event or development as a result of which such Permitted Section 5(d) Communication
included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly
notify the Underwriter and will promptly amend or supplement, at its own expense, such Permitted Section 5(d) Communication
to eliminate or correct such untrue statement or omission.
24
The Underwriter, may, in its
sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for
their performance.
Section 4. Payment
of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to
the issuance and delivery of the Offered Securities (including all printing and engraving costs), (ii) all fees and expenses of the
registrar and transfer agent of the Offered Securities, (iii) all necessary issue, transfer and other stamp taxes in connection with
the issuance and sale of the Offered Securities to the Underwriter, (iv) all fees and expenses of the Company’s counsel, independent
public or certified public accountants and other advisors, (v) all costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents
and certificates of experts), the Time of Sale Prospectus, the Prospectus, each free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company, and each preliminary prospectus, each Permitted Section 5(d) Communication, and all amendments
and supplements thereto, and this Agreement, (vi) all filing fees, reasonable and documented attorneys’ fees and expenses incurred
by the Company or the Underwriter in connection with qualifying or registering (or obtaining exemptions from the qualification or registration
of) all or any part of the Offered Securities for offer and sale under the state securities or blue sky laws or the provincial securities
laws of Canada, and, if requested by the Underwriter, preparing and printing a “Blue Sky Survey” or memorandum and a “Canadian
wrapper”, and any supplements thereto, advising the Underwriter of such qualifications, registrations and exemptions, (vii) the
costs, fees and expenses incurred by the Underwriter in connection with determining their compliance with the rules and regulations
of FINRA related to the Underwriter’s participation in the offering and distribution of the Offered Securities, if applicable, including
any related filing fees and the reasonable and documented legal fees of, and disbursements by, counsel to the Underwriter, (viii) the
costs and expenses of the Company relating to investor presentations on any “road show”, any Permitted Section 5(d) Communication
or any Section 5(d) Oral Communication undertaken in connection with the offering of the Offered Securities, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the representatives, employees and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road show, provided, however, that the prior written approval
of the Company was obtained prior to the chartering of any such aircraft (ix) the fees and expenses associated with listing the Offered
Securities on the NASDAQ, (x) the reasonable and documented fees and disbursements of one counsel to the Underwriter incurred in
connection with the offering and transactions contemplated by this Agreement, in compliance with FINRA Rule 5110 and in an aggregate
amount not to exceed $150,000, and (xi) all other fees, costs and expenses of the nature referred to in Item 14 of Part II of
the Registration Statement. Except as provided in this Section 4 or in Section 7,
Section 9 or Section 10 hereof, the Underwriter
shall pay its own expenses; provided, however, that the Company shall reimburse the Underwriter for the fees and disbursements of its
counsel to the extent set forth in clause (x) above.
Section 5. Covenant
of the Underwriter. The Underwriter covenants with the Company not to take any action that would result in the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that otherwise would not, but for such actions, be required to be filed by the Company under Rule 433(d).
25
Section 6. Conditions
of the Obligations of the Underwriter. The obligations of the Underwriter hereunder to purchase and pay for the Offered Securities
as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company set forth in Section 1
hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as of each
Option Closing Date as though then made, to the timely performance by the Company of its covenants and other obligations hereunder, and
to each of the following additional conditions:
(a) Comfort
Letter. On the date hereof, the Underwriter shall have received from CBIZ CPAs P.C. independent registered public accountants
for the Company, a letter dated the date hereof addressed to the Underwriter, in form and substance satisfactory to the Underwriter, containing
statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered
according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial
statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus, and each free writing
prospectus, if any.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from FINRA. For the period from and after the date of this Agreement
and through and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each
Option Closing Date:
(i) The
Company shall have filed the Prospectus with the Commission (including the information previously omitted from the Registration Statement
pursuant to Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under
the Securities Act.
(ii) No
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall
be in effect, and no proceedings for such purpose shall have been instituted or threatened by the Commission.
(iii) If
a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and
arrangements.
(c) No
Material Adverse Effect or Ratings Agency Change. For the period from and after the date of this Agreement and through and including
the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each Option Closing Date:
(i) in
the judgment of the Underwriter there shall not have occurred any Material Adverse Effect; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company
by any “nationally recognized statistical rating organization” as that term is used in Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act.
(d) Opinion
of Counsel for the Company. On each of the First Closing Date and each Option Closing Date the Underwriter shall have received
the opinion and negative assurance letter of Latham & Watkins LLP, counsel for the Company, dated as of such date, in form and
substance satisfactory to the Underwriter.
26
(e) Opinion
of Counsel for the Underwriter. On each of the First Closing Date and each Option Closing Date the Underwriter shall have received
the opinion and negative assurance letter of Goodwin Procter LLP, counsel for the Underwriter in connection with the offer and sale of
the Offered Securities, in form and substance satisfactory to the Underwriter, dated as of such date.
(f) Officers’
Certificate. On each of the First Closing Date and each Option Closing Date, the Underwriter shall have received a certificate
executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company, dated as of such date,
to the effect set forth in Section 6(b)(ii) and further to the effect that:
(i) for
the period from and including the date of this Agreement through and including such date, there has not occurred any Material Adverse
Effect;
(ii) the
representations and warranties of the Company set forth in Section 1 of this Agreement are true and correct in all material respects
with the same force and effect as though expressly made on and as of such date (except for representations and warranties already qualified
by materiality, which shall be true and correct in all respects); and
(iii) the
Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder
at or prior to such date.
(g) Bring-down
Comfort Letter. On each of the First Closing Date and each Option Closing Date the Underwriter shall have received from CBIZ CPAs
P.C., independent registered public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Underwriter,
which letter shall: (i) reaffirm the statements made in the letter furnished by them pursuant to Section 6(a),
except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior
to the First Closing Date or the applicable Option Closing Date, as the case may be; and (ii) cover certain financial information
contained in the Prospectus.
(h) Lock-Up
Agreements. On or prior to the date hereof, the Company shall have furnished to the Underwriter an agreement in the form of Exhibit A
hereto from each of the persons listed on Exhibit B hereto, and each such agreement shall be in full force and effect on each
of the First Closing Date and each Option Closing Date.
(i) Rule 462(b) Registration
Statement. In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated
by this Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission on the date of this Agreement
and shall have become effective automatically upon such filing.
(j) CFO
Certificate. On the date of this Agreement and on the First Closing Date or the applicable Option Closing Date, as the case may
be, the Company shall have furnished to the Underwriter a certificate, dated the respective dates of delivery thereof and addressed to
the Underwriter, of its chief financial officer with respect to certain financial data contained in the Time of Sale Prospectus and the
Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory
to the Underwriter.
(k) [Reserved]
(l) Additional
Documents. On or before each of the First Closing Date and each Option Closing Date, the Underwriter and counsel for the Underwriter
shall have received such information, documents and opinions as they may reasonably request for the purposes of enabling them to pass
upon the issuance and sale of the Offered Securities as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Offered Securities as contemplated herein and in connection with the other transactions
contemplated by this Agreement shall be satisfactory in form and substance to the Underwriter and counsel for the Underwriter.
27
If any condition
specified in this Section 6 is not satisfied when and as required to be satisfied, this
Agreement may be terminated by the Underwriter by notice to the Company at any time on or prior to the First Closing Date and, with respect
to the Optional Shares, at any time on or prior to the applicable Option Closing Date, which termination shall be without liability on
the part of any party to any other party, except that Section 4, Section 7,
Section 9 and Section 10 shall at all times
be effective and shall survive such termination.
Section 7. Reimbursement
of Underwriter’s Expenses. If this Agreement is terminated by the Underwriter pursuant to Section 6
or Section 12, or if the sale to the Underwriter of the Offered Securities on the First
Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein
or to comply with any provision hereof, the Company agrees to reimburse the Underwriter upon demand for all out-of-pocket expenses that
shall have been reasonably incurred by the Underwriter in connection with the proposed purchase and the offering and sale of the Offered
Securities, including, but not limited to, fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and
telephone charges.
Section 8. Effectiveness
of this Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Section 9. Indemnification.
(a) Indemnification
of the Underwriter. The Company agrees to indemnify and hold harmless the Underwriter, its affiliates, directors, officers, employees
and agents, and each person, if any, who controls the Underwriter within the meaning of the Securities Act or the Exchange Act against
any loss, claim, damage, liability or expense, as incurred, to which the Underwriter or such affiliate, director, officer, employee, agent
or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation,
or the laws or regulations of foreign jurisdictions where Offered Securities have been offered or sold or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading;
or (ii) any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale
Prospectus, any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of
the Securities Act, any Marketing Material, any Section 5(d) Written Communication or the Prospectus (or any amendment or supplement
to the foregoing), or the omission or alleged omission to state therein a material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not misleading; and to reimburse the Underwriter and each such affiliate, director,
officer, employee, agent and controlling person for any and all reasonable and documented expenses (including the reasonable and documented
fees and disbursements of one counsel) as such expenses are incurred by the Underwriter or such affiliate, director, officer, employee,
agent or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply (x) to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in conformity with information relating to the Underwriter furnished
to the Company by the Underwriter in writing expressly for use in the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any such free writing prospectus, any Marketing Material, any Section 5(d) Written Communication or the Prospectus
(or any amendment or supplement thereto), it being understood and agreed that the only such information consists of the information described
in Section 9(b) below, or (y) to the extent that such loss, claim, damage, liability
or expense is finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence or willful
misconduct or bad faith of the Underwriter or any such indemnified person. The indemnity agreement set forth in this Section 9(a) shall
be in addition to any liabilities that the Company may otherwise have.
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(b) Indemnification
of the Company, its Directors and Officers. The Underwriter agrees to indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company, or any such
director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written
consent of the Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, or any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company has used, referred
to or filed, or is required to file, pursuant to Rule 433 of the Securities Act, any Section 5(d) Written Communication
or the Prospectus (or any such amendment or supplement) or the omission or alleged omission to state therein a material fact necessary
in order to make the statements, in the light of the circumstances under which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration
Statement, such preliminary prospectus, the Time of Sale Prospectus, such free writing prospectus, such Section 5(d) Written
Communication or the Prospectus (or any such amendment or supplement), in reliance upon and in conformity with information relating to
the Underwriter furnished to the Company by the Underwriter in writing expressly for use therein; and to reimburse the Company, or any
such director, officer or controlling person for any and all reasonable and documented expenses (including the reasonable and documented
fees and disbursements of one counsel) as such expenses are incurred by the Company, or any such director, officer or controlling person
in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action.
The Company hereby acknowledges that the only information that the Underwriter has furnished to the Company expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) of the Securities Act, any Section 5(d) Written Communication or the Prospectus (or
any amendment or supplement to the foregoing) are the statements set forth in the in the sentences relating to the concession to certain
dealers under the caption “Underwriting – Commission and Expenses” and the statements in the first and second paragraphs
under the caption “Underwriting – Stabilization” in the Preliminary Prospectus Supplement and the Final Prospectus Supplement.
The indemnity agreement set forth in this Section 9(b) shall be in addition to any
liabilities that the Underwriter may otherwise have.
29
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 9, notify the indemnifying party in writing of the commencement
thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which it may
have to any indemnified party to the extent the indemnifying party is not materially prejudiced as a proximate result of such failure
and shall not in any event relieve the indemnifying party from any liability that it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly
with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded based upon the advice of counsel that a conflict may arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party’s election to so assume the defense of such action and approval by the indemnified party of counsel,
such approval not to be unreasonably withheld, delayed or conditioned, the indemnifying party will not be liable to such indemnified party
under this Section 9 for any reasonable and documented legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not
be liable for the fees and expenses of more than one separate counsel (together with one local counsel for each applicable jurisdiction),
representing the indemnified parties who are parties to such action), which counsel (together with such local counsel) for the indemnified
parties shall be selected by the Underwriter (in the case of counsel for the indemnified parties referred to in Section 9(a) above)
or by the Company (in the case of counsel for the indemnified parties referred to in Section 9(b) above))
or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of the indemnifying party, in each of which cases the fees
and expenses of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 9 shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 9(c) hereof,
the indemnifying party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party
and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent includes
an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding
and does not include an admission of fault or culpability or a failure to act by or on behalf of such indemnified party.
30
Section 10. Contribution.
If the indemnification provided for in Section 9 is for any reason held to be unavailable
to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party,
as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, from the
offering of the Offered Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company, on the one hand, and the Underwriter, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, in connection with the offering
of the Offered Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total proceeds from
the offering of the Offered Securities pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriter, in each case as set forth on the front cover page of the Prospectus, bear
to the aggregate initial public offering price of the Offered Securities as set forth on such cover. The relative fault of the Company,
on the one hand, and the Underwriter, on the other hand, shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied
by the Company, on the one hand, or the Underwriter, on the other hand, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 9(c), any reasonable and documented legal
or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions
set forth in Section 9(c) with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this Section 10; provided, however,
that no additional notice shall be required with respect to any action for which notice has been given under Section 9(c) for
purposes of indemnification.
The Company and the
Underwriter agree that it would not be just and equitable if contribution pursuant to this Section 10
were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to in this Section 10.
Notwithstanding the
provisions of this Section 10, the Underwriter shall be required to contribute any amount
in excess of the underwriting discounts and commissions received by the Underwriter in connection with the Offered Securities underwritten
by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriter’s
obligations to contribute pursuant to this Section 10 are several, and not joint, in proportion
to their respective underwriting commitments as set forth opposite their respective names on Schedule A. For purposes of this Section 10,
each affiliate, director, officer, employee and agent of an Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as the Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within
the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
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Section 11. [Reserved]
Section 12. Termination
of this Agreement. Prior to the purchase of the Firm Shares by the Underwriter on the First Closing Date, this Agreement may
be terminated by the Underwriter by notice given to the Company if at any time: (i) trading or quotation in any of the Company’s
securities shall have been suspended or limited by the Commission or by the NASDAQ, or trading in securities generally on either the NASDAQ
or the NYSE shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock
exchanges; (ii) a general banking moratorium shall have been declared by federal or New York authorities; (iii) there shall
have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United
States or international financial markets, or any substantial change or development involving a prospective substantial change in United
States’ or international political, financial or economic conditions, as in the judgment of the Underwriter is material and adverse
and makes it impracticable to market the Offered Securities in the manner and on the terms described in the Time of Sale Prospectus or
the Prospectus or to enforce contracts for the sale of securities; or (iv) in the judgment of the Underwriter there shall have occurred
any Material Adverse Effect. Any termination pursuant to this Section 12 shall be without
liability on the part of (a) the Company to the Underwriter, except that the Company shall be obligated to reimburse the expenses
of the Underwriter pursuant to Section 4 or Section 7 hereof
or (b) the Underwriter to the Company; provided, however, that the provisions of Section 9
and Section 10 shall at all times be effective and shall survive such termination.
Section 13. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Offered Securities
pursuant to this Agreement, including the determination of the public offering price of the Offered Securities and any related discounts
and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriter, on the other
hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction, the Underwriter is and
has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, or its creditors, employees
or any other party, (c) the Underwriter has not assumed or will assume an advisory or fiduciary responsibility in favor of the Company
with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Underwriter has advised or
is currently advising the Company on other matters) and the Underwriter does not have any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriter and its affiliates
may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriter
has not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
Section 14. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements
of the Company, of its officers and of the Underwriter set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriter or the Company or any of its or their partners, officers or directors
or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery of and payment
for the Offered Securities sold hereunder and any termination of this Agreement.
32
Section 15. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto
as follows:
If to the Underwriter:
Chardan Capital Markets LLC
One Pennsylvania Avenue, Suite 4800
New York, New York 10119
Attention: Legal Department
Legal Department
E-mail: legal@chardan.com
with a copy to:
Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New York, New York 10018
Attention: Justin S. Platt
E-mail: JPlatt@goodwinlaw.com
If to the Company:
Hyperion DeFi, Inc.
3090 Nowitzki Way, Suite 300 Dallas,
Texas 75219
Attention: Chief Executive Officer
E-mail:
with a copy to:
Latham & Watkins LLP
1271 Avenue of the Americas
New York, New York 10020
Attention: Greg Rodgers and Brittany Ruiz
E-mail: Greg.Rodgers@lw.com; Brittany.Ruiz@lw.com
Any party hereto may change the address for receipt of communications
by giving written notice to the others.
Section 16. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the affiliates, directors, officers,
employees, agents and controlling persons referred to in Section 9 and Section 10,
and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors”
shall not include any purchaser of the Offered Securities as such from the Underwriter merely by reason of such purchase.
Section 17. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
33
Section 18. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that the Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from the Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that the Underwriter that is a Covered Entity or a BHC Act Affiliate of the Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Underwriter are permitted to be
exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For purposes of this Agreement, (A) “BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
(B) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in,
and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the meaning assigned to that
term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) “U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 19. Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New
York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts
of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in
each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each
party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment
of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above
shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably
and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in
any such court has been brought in an inconvenient forum.
Section 20. General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may
be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and
no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit.
The section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this
Agreement.
Each of the parties
hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding
the provisions hereof, including, without limitation, the indemnification provisions of Section 9
and the contribution provisions of Section 10, and is fully informed regarding said provisions.
Each of the parties hereto further acknowledges that the provisions of Section 9 and Section 10
hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order
to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
each free writing prospectus and the Prospectus (and any amendments and supplements to the foregoing), as contemplated by the Securities
Act and the Exchange Act.
34
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
Very truly yours,
HYPERION DEFI, INC.
By:
/s/ David Knox
Name:
David Knox
Title:
Chief Financial Officer and Treasurer
The foregoing Underwriting Agreement is hereby
confirmed and accepted by the Underwriter in New York, New York as of the date first above written.
CHARDAN CAPITAL MARKETS LLC
By:
/s/ Jonas Grossman
Name:
Jonas Grossman
Title:
Managing Member
35
Schedule A
Underwriter
Number of
Firm Shares
to be Purchased
Chardan Capital Markets LLC
2,777,778
Total
2,777,778
Schedule B
Free Writing Prospectuses Included in the
Time of Sale Prospectus
None
Schedule C
Permitted Section 5(d) Communications
None
Exhibit A
Form of Lock-up Agreement
May [ • ], 2026
Chardan Capital Markets LLC
One Pennsylvania Avenue, Suite 4800
New York, New York 10119
RE: Hyperion DeFi, Inc. (the
“Company”)
Ladies & Gentlemen:
The undersigned is an owner of shares of common stock, par value $0.0001
per share, of the Company (“Shares”) or of securities convertible into or exchangeable or exercisable for Shares. The
Company proposes to conduct a public offering of Shares and/or pre-funded warrants to purchase Shares (the “Pre-Funded Warrants”
and together with the Shares, the “Securities”) (the “Offering”) for which Chardan Capital Markets
LLC will act as the underwriter (the “Underwriter”). The undersigned recognizes that the Offering will benefit each
of the Company and the undersigned. The undersigned acknowledges that you are relying on the representations and agreements of the undersigned
contained in this letter agreement in conducting the Offering and, on the date hereof or at a subsequent date, in entering into an underwriting
agreement (the “Underwriting Agreement”) and other underwriting arrangements with the Company with respect to the Offering.
Annex A sets forth definitions for capitalized
terms used in this letter agreement that are not defined in the body of this agreement. Those definitions are a part of this agreement.
In consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees that, during
the Lock-up Period, the undersigned will not (and will cause any Family Member not to), without the prior written consent of the Underwriter,
which may withhold its consent in its sole discretion:
· Sell or Offer to Sell any Shares or Related Securities
currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by the undersigned
or such Family Member,
· enter into any Swap,
· make any demand for, or exercise any right with
respect to, the registration under the Securities Act of the offer and sale of any Shares or Related Securities, or cause to be filed
a registration statement, prospectus or prospectus supplement (or an amendment or supplement thereto) with respect to any such registration,
or
· publicly announce any intention to do any of
the foregoing.
D-1
The foregoing will not apply to the registration
of the offer and sale of the Securities, and the sale of the Securities to the underwriters, in each case as contemplated by the Underwriting
Agreement. In addition, the foregoing restrictions shall not apply to the transfer of Shares or Related Securities (i) by gift, or
by will or intestate succession to a Family Member or to a trust whose beneficiaries consist exclusively of one or more of the undersigned
and/or a Family Member, (ii) as a bona fide gift to a charity or educational institution, or for bona fide estate planning purposes,
(iii) transfers that occur solely by operation of law pursuant to a court order, qualified domestic order or in connection with a
divorce settlement, (iv) acquired in open market transactions after the completion of the Offering, provided that no filing under
Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of Shares
or Related Securities acquired in such open market transactions, (v) the transfer of Shares under a trading plan pursuant to Rule 10b5-1
under the Exchange Act (a “Trading Plan”) that is existing on the date hereof which has been provided to the Underwriter
or its legal counsel, (vi) the establishment or modification of a Trading Plan for the transfer of Shares or Related Securities,
provided that such plan does not provide for any Sales of Shares or Related Securities during the Lock-Up Period, (vii) the transfer
of Shares in connection with the exercise, including by and to the extent necessary to cover any “net” or “cashless”
exercise, of any options or warrants to acquire Shares or the conversion of any convertible security into Shares in accordance with its
terms, and any transfer to the Company in connection with the payment of taxes (including estimated taxes and withholding obligations)
due as a result of the vesting, settlement or exercise of any equity award, including by way of “sell-to-cover” or any similar
arrangement, (viii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity,
(A) transfers to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate
(as defined in Rule 405 under the Securities Act) of the undersigned, or to any investment fund or other entity controlling, controlled
by, managing or managed by or under common control with the undersigned, or (B) distributions to limited partners, members, stockholders,
beneficiaries or other equityholders of the undersigned, (ix) if the undersigned is a trust, transfers to a trustor or beneficiary
of the trust or to the estate of a beneficiary of such trust, or (x) transfers to a nominee or custodian of a person or entity to
whom a transfer would be permissible under clauses (i), (ii), (iii), (viii) or (ix) above, (xi) transfers to the Company
in connection with the repurchase, forfeiture or cancellation of Shares or Related Securities upon the death, disability or termination
of employment or other service relationship of the undersigned with the Company, in each case pursuant to contractual arrangements in
effect as of the date hereof; provided, however, it shall be a condition to such transfer that:
· in the case of clauses (i)-(iii) above,
each transferee executes and delivers to the Underwriter an agreement in form and substance satisfactory to the Underwriter stating that
such transferee is receiving and holding such Shares and/or Related Securities subject to the provisions of this letter agreement and
agrees not to Sell or Offer to Sell such Shares and/or Related Securities, engage in any Swap or engage in any other activities restricted
under this letter agreement except in accordance with this letter agreement (as if such transferee had been an original signatory hereto),
· in the case of clause (v) 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 such transfer, such announcement or filing shall include a statement that such transfer is in accordance with
an established Trading Plan, and
in the case of clauses (i)-(iii) and
(vii) above, prior to the expiration of the Lock-up Period, (A) no public disclosure or filing under the Exchange Act by any
party to the transfer (donor, donee, transferor or transferee) shall be voluntarily made reporting a reduction in beneficial ownership
of Shares in connection with such transfer, and (B) if any such filing under Section 13 or Section 16(a) of the Exchange
Act is required to be made by the undersigned during the Lock-up Period, the undersigned shall include a footnote or other statement in
such report indicating the nature of the transaction and that the Shares remain subject to the terms of this letter agreement.
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 Shares or Related Securities
beneficially owned by the undersigned and the undersigned’s Family Members, if any, except in compliance with the foregoing restrictions.
D-2
With respect to the Offering only, the undersigned
waives any registration rights relating to registration under the Securities Act of the offer and sale of any Shares and/or any Related
Securities owned either of record or beneficially by the undersigned, including any rights to receive notice of the Offering.
The undersigned confirms that the undersigned
has not, and has no knowledge that any Family Member has, directly or indirectly, taken any action designed to or that might reasonably
be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale
of the Shares. The undersigned will not, and will cause any Family Member not to take, directly or indirectly, any such action.
The undersigned acknowledges and agrees that the
underwriters have not provided any recommendation or investment advice nor have the underwriters solicited any action from the undersigned
with respect to the Offering and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to
the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriter and underwriters may be
required or choose to provide certain Regulation Best Interest and Form CRS disclosures to the undersigned in connection with the
Offering, the Underwriter and the other underwriters are not making a recommendation to the undersigned to enter into this letter agreement
and nothing set forth in such disclosures is intended to suggest that the Underwriter is making such a recommendation.
Whether or not the Offering occurs as currently
contemplated or at all depends on market conditions and other factors. The Offering will only be made pursuant to the Underwriting Agreement,
the terms of which are subject to negotiation between the Company and you.
The undersigned hereby represents and warrants
that the undersigned has full power, capacity and authority to enter into this letter agreement. This letter agreement is irrevocable
and will be binding on the undersigned and the successors, heirs, personal representatives and assigns of the undersigned.
Notwithstanding anything herein to the contrary,
if (a) the closing of the Offering has not occurred prior to May 31, 2026, (b) after being executed, the Underwriting Agreement
(other than the provisions thereof that survive termination) shall terminate or be terminated prior to payment for and delivery of the
Securities to be sold thereunder, or (c) the Company notifies the Underwriter in writing that it does not intend to proceed with
the Offering, then the undersigned shall be released from all obligations under this letter agreement upon the earliest to occur of the
events specified above.
This letter agreement may be delivered via facsimile,
electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or
www.echosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered
and be valid and effective for all purposes.
This letter agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
D-3
Signature
Printed Name of Person Signing
(Indicate capacity of person signing if
signing as custodian or trustee, or on behalf of an entity)
D-4
ANNEX A
Certain Defined Terms Used in Lock-up Agreement
For purposes of the letter agreement to which
this Annex A is attached and of which it is made a part:
“Call
Equivalent Position” shall have the meaning set forth in Rule 16a-1(b) under the Exchange Act.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
“Family
Member” shall mean the spouse of the undersigned, an immediate family member of the undersigned or an immediate family member
of the undersigned's spouse, in each case living in the undersigned's household or whose principal residence is the undersigned's household
(regardless of whether such spouse or family member may at the time be living elsewhere due to educational activities, health care treatment,
military service, temporary internship or employment or otherwise). “Immediate family member” as used above shall have
the meaning set forth in Rule 16a-1(e) under the Exchange Act.
“Lock-up
Period” shall mean the period beginning on the date hereof and continuing through the close of trading on the date that is 15
days after the date of the Prospectus (as defined in the Underwriting Agreement).
“Put
Equivalent Position” shall have the meaning set forth in Rule 16a-1(h) under the Exchange Act.
“Related
Securities” shall mean any options or warrants or other rights to acquire Shares or any securities exchangeable or exercisable
for or convertible into Shares, or to acquire other securities or rights ultimately exchangeable or exercisable for or convertible into
Shares.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Sell
or Offer to Sell” shall mean to:
– sell, offer to sell, contract to sell or lend,
– effect any short sale or establish or increase a Put Equivalent Position or liquidate or decrease any
Call Equivalent Position
– pledge, hypothecate or grant any security interest in, or
– in any other way transfer or dispose of,
in each case whether
effected directly or indirectly.
“Swap”
shall mean any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership of
Shares or Related Securities, regardless of whether any such transaction is to be settled in securities, in cash or otherwise.
Capitalized terms not defined in this Annex A
shall have the meanings given to them in the body of this lock-up agreement.
D-5
Exhibit B
Directors and Officers
Signing Lock-up Agreement
Directors and/or Executive Officers:
Michael Geltzeiler
Rachel Jacobson
Ellen Strahlman
Hyunsu Jung
Happy Walters
David Knox
Robert Rubenstein
D-6
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2613722d1_ex5-1.htm · Sequence: 3
Exhibit 5.1
1271 Avenue of the Americas
New York, New York 10020-1401
Tel: +1.212.906.1200 Fax:
+1.212.751.4864
www.lw.com
FIRM / AFFILIATE OFFICES
Austin
Milan
Beijing
Munich
Boston
New York
Brussels
Orange County
Chicago
Paris
May 6, 2026
Dubai
Riyadh
Düsseldorf
San Diego
Frankfurt
San Francisco
Hamburg
Seoul
Hong Kong
Silicon Valley
Houston
Singapore
Hyperion DeFi, Inc.
London
Tel Aviv
3090 Nowitzki Way, Suite 300
Los Angeles
Tokyo
Dallas, Texas 75219
Madrid
Washington, D.C.
Re: Registration Statement on Form S-3 (No. 333-291570); up to 3,194,444 shares of Common Stock, par value $0.0001 per share
To the addressee set forth above:
We have acted as special counsel to Hyperion DeFi, Inc.,
a Delaware corporation (the “Company”), in connection with the offering of up to 3,194,444 shares (including
up to 416,666 shares issuable upon the exercise of the underwriter’s option to purchase additional shares) of common stock of the
Company, par value $0.0001 per share (the “Shares”). The offering of the Shares was made under a registration
statement on Form S-3 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities
and Exchange Commission (the “Commission”) on November 17, 2025 (File No. 333-291570) (as so filed
and as amended, the “Registration Statement”), a base prospectus dated December 9, 2025 included in the
Registration Statement at the time it originally became effective (the “Base Prospectus”), a preliminary prospectus
supplement dated May 5, 2026 filed with the Commission pursuant to Rule 424(b) under the Act (together with the Base Prospectus,
the “Preliminary Prospectus”) and a prospectus supplement dated May 5, 2026 filed with the Commission pursuant
to Rule 424(b) under the Act (together with the Base Prospectus, the “Prospectus”). The Shares are
being sold pursuant to an underwriting agreement dated May 5, 2026 between the Company and Chardan Capital Markets, LLC, as underwriter
(the “Underwriting Agreement”).
This opinion is being furnished in connection with
the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining
to the contents of the Registration Statement, the Preliminary Prospectus or the Prospectus, other than as expressly stated herein with
respect to the issue of the Shares.
As such counsel, we have examined such matters of
fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates
and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
We are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express
no opinion with respect to any other laws.
Subject to the foregoing and the other matters set
forth herein, it is our opinion that, as of the date hereof when the Shares shall have been duly registered on the books of the transfer
agent and registrar therefor in the name or on behalf of the purchasers, and have been issued by the Company against payment therefor
(not less than par value) in the circumstances contemplated by the Underwriting Agreement, the issue and sale of the Shares will have
been duly authorized by all necessary corporate action of the Company and the Shares will be validly issued, fully paid and nonassessable.
In rendering the foregoing
opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided
in the DGCL.
This opinion is for your benefit in connection with
the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions
of the Act. We consent to your filing this opinion as an exhibit to the Company’s Current Report on Form 8-K dated May 5,
2026 and to the reference to our firm in the Prospectus under the heading “Legal Matters.” In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission thereunder.
Sincerely,
/s/ Latham & Watkins LLP
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2613722d1_ex99-1.htm · Sequence: 4
Exhibit 99.1
Hyperion DeFi Announces Proposed Public Offering of Common Stock
and Pre-Funded Warrants
DALLAS, TX, May 5, 2026 (GLOBE NEWSWIRE) – Hyperion
DeFi, Inc. (NASDAQ: HYPD) (“Hyperion DeFi” or the “Company”), the first U.S. publicly listed DeFi company
building on Hyperliquid, today announced that it intends to offer and sell, subject to market and other conditions, shares of its common
stock or, in lieu of common stock to certain investors that so choose, pre-funded warrants to purchase shares of its common stock, in
a proposed underwritten public offering. All of the shares of common stock and pre-funded warrants to be sold in the proposed offering
are being offered by Hyperion DeFi. In addition, Hyperion DeFi intends to grant the sole underwriter a 30-day option to purchase up to
an additional 15% of the total number of securities offered in the public offering. There can be no assurance as to whether or when the
proposed public offering may be completed, or as to the actual size or terms of the proposed offering.
Hyperion DeFi intends to use the net proceeds from the proposed offering,
together with its existing cash, cash equivalents and marketable securities, to fund its HYPE treasury strategy, including the acquisition
of additional HYPE tokens, and for working capital and other general corporate purposes.
Chardan is acting as sole underwriter for the proposed offering.
The securities described above are being offered by Hyperion DeFi
pursuant to a shelf registration statement on Form S-3, including a base prospectus, that was previously filed with the Securities
and Exchange Commission (the “SEC”) on November 17, 2025 and declared effective on December 9, 2025. A preliminary
prospectus supplement and accompanying prospectus relating to this offering will be filed with the SEC. Copies of the prospectus supplement
and accompanying prospectus for this offering may be obtained, when available, by contacting Chardan Capital Markets, LLC, Attn: Capital
Markets, One Pennsylvania Plaza, Suite 4800, New York, New York 10119, by email at prospectus@chardan.com. Electronic copies of
the preliminary prospectus supplement and accompanying prospectus will also be available on the website of the SEC at http://www.sec.gov.
This press release shall not constitute an offer to sell or the solicitation
of an offer to buy these securities, nor shall there be any sale of these securities in any state or jurisdiction in which such offer,
solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or jurisdiction.
About Hyperion DeFi
Hyperion DeFi is the first U.S. publicly listed company building a
long-term strategic treasury of Hyperliquid’s native token, HYPE. The Company is working to provide its shareholders with simplified
exposure to the Hyperliquid ecosystem, which it believes to be one of the highest revenue-generating blockchains in the world. Hyperion
DeFi’s strategy is designed to allow shareholders to benefit from compounding exposure to HYPE, both from its staking yield and
additional revenues generated from its unique on-chain utility.
Forward Looking Statements
Except for historical information, all the statements, expectations
and assumptions contained in this press release are forward-looking statements. The forward-looking statements are based on our current
beliefs and expectations and include, but are not limited to: our expectations regarding the completion, timing and size of the proposed
offering, our intended use of proceeds therefrom, the grant of the option to purchase additional shares and statements that express our
intentions, beliefs, expectations, strategies, predictions or any other statements regarding our future activities or other future events
or conditions, including the viability of, and risks associated with, our cryptocurrency treasury strategy, the growth and revenue potential
of the Hyperliquid ecosystem and the growth prospects of the Company. These statements are based on current expectations, estimates and
projections about our business based, in part, on assumptions made by management. Actual results may differ from those set forth in this
press release due to the risks and uncertainties associated with market conditions and the satisfaction of customary closing conditions
related to the proposed offering, as well as risks and uncertainties inherent in our business described in our prior filings with the
SEC, including under the heading “Risk Factors” in our annual report on Form 10-K for the year ended December 31,
2025, and any subsequent filings with the SEC. You are cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date hereof, and we undertake no obligation to update such statements to reflect events that occur or circumstances
that exist after the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement, which
is made under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Contact:
Jason Assad
Hyperion DeFi, Inc.
IR@hyperiondefi.com
Source: Hyperion DeFi, Inc.
EX-99.2 — EXHIBIT 99.2
EX-99.2
Filename: tm2613722d1_ex99-2.htm · Sequence: 5
Exhibit 99.2
Hyperion DeFi Announces Pricing of Public Offering of Common Stock
DALLAS, TX, May 6, 2026 (GLOBE NEWSWIRE) – Hyperion DeFi,
Inc. (NASDAQ: HYPD) (“Hyperion DeFi” or the “Company”), the first U.S. publicly listed DeFi company building on
Hyperliquid, today announced the pricing of a public offering of 2,777,778 shares of its common stock. The shares of common stock are
being sold to the public at a price of $3.60 per share. All of the shares of common stock to be sold in the public offering are to be
sold by Hyperion DeFi. The gross proceeds to Hyperion DeFi from the offering, before deducting the underwriting discounts and commissions
and other offering expenses, are expected to be approximately $10.0 million. In addition, Hyperion DeFi has granted the sole underwriter
a 30-day option to purchase up to an additional 416,666 shares of its common stock at the public offering price per share, less underwriting
discounts and commissions. The offering is expected to close on May 7, 2026, subject to the satisfaction of customary closing conditions.
Hyperion DeFi intends to use the net proceeds from this offering, together
with its existing cash, cash equivalents and marketable securities, to fund its HYPE treasury strategy, including the acquisition of additional
HYPE tokens, and for working capital and other general corporate purposes.
Chardan is acting as sole underwriter for the offering.
The securities described above are being offered by Hyperion DeFi pursuant
to a shelf registration statement on Form S-3, including a base prospectus, that was previously filed with the Securities and Exchange
Commission (the “SEC”) on November 17, 2025 and declared effective on December 9, 2025.
A preliminary prospectus supplement relating to this offering has
been filed with the SEC and a final prospectus supplement relating to this offering will be filed with the SEC. The offering may be made
only by means of a prospectus supplement and accompanying prospectus. When available, copies of the final prospectus supplement and the
accompanying prospectus relating to this offering may be obtained by contacting Chardan Capital Markets, LLC, Attn: Capital Markets,
One Pennsylvania Plaza, Suite 4800, New York, New York 10119, by email at prospectus@chardan.com. Electronic copies of the final
prospectus supplement and accompanying prospectus will also be available on the website of the SEC at http://www.sec.gov.
This press release shall not constitute an offer to sell or the solicitation
of an offer to buy these securities, nor shall there be any sale of these securities in any state or jurisdiction in which such offer,
solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or jurisdiction.
About Hyperion DeFi
Hyperion DeFi is the first U.S. publicly listed company building a
long-term strategic treasury of Hyperliquid’s native token, HYPE. The Company is working to provide its shareholders with simplified
exposure to the Hyperliquid ecosystem, which it believes to be one of the highest revenue-generating blockchains in the world. Hyperion
DeFi’s strategy is designed to allow shareholders to benefit from compounding exposure to HYPE, both from its staking yield and
additional revenues generated from its unique on-chain utility.
Forward Looking Statements
Except for historical information, all the statements, expectations
and assumptions contained in this press release are forward-looking statements. The forward-looking statements are based on our current
beliefs and expectations and include, but are not limited to: our expectations regarding the expected closing of the offering, the anticipated
use of proceeds therefrom and statements that express our intentions, beliefs, expectations, strategies, predictions or any other statements
regarding our future activities or other future events or conditions, including the viability of, and risks associated with, our cryptocurrency
treasury strategy, the growth and revenue potential of the Hyperliquid ecosystem and the growth prospects of the Company. These statements
are based on current expectations, estimates and projections about our business based, in part, on assumptions made by management. Actual
results may differ from those set forth in this press release due to the risks and uncertainties associated with market conditions and
the satisfaction of customary closing conditions related to the offering, as well as risks and uncertainties inherent in our business
described in our prior filings with the SEC, including under the heading “Risk Factors” in our annual report on Form 10-K
for the year ended December 31, 2025, and any subsequent filings with the SEC. You are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date hereof, and we undertake no obligation to update such statements to reflect
events that occur or circumstances that exist after the date hereof. All forward-looking statements are qualified in their entirety by
this cautionary statement, which is made under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Contact:
Jason Assad
Hyperion DeFi, Inc.
IR@hyperiondefi.com
Source: Hyperion DeFi, Inc.
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