Form 8-K
8-K — DYADIC INTERNATIONAL INC
Accession: 0001493152-26-038039
Filed: 2026-08-14
Period: 2026-08-13
CIK: 0001213809
SIC: 2836 (BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES))
Item: Entry into a Material Definitive Agreement
Item: Unregistered Sales of Equity Securities
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — form8-k.htm (Primary)
EX-4.1 (ex4-1.htm)
EX-5.1 (ex5-1.htm)
EX-10.1 (ex10-1.htm)
EX-10.2 (ex10-2.htm)
EX-10.3 (ex10-3.htm)
EX-10.4 (ex10-4.htm)
EX-99.1 (ex99-1.htm)
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GRAPHIC (ex5-1_001.jpg)
GRAPHIC (ex5-1_002.jpg)
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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): August 13, 2026
Dyadic
International, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
001-32513
45-0486747
(State
or other jurisdiction
of
incorporation or organization)
(Commission
File
Number)
(I.R.S.
Employer
Identification
Number)
1044
North U.S. Highway One, Suite 201
Jupiter,
FL 33477
(Address
of principal executive offices and zip code)
(561)
743-8333
(Registrant’s
telephone number, including area code)
N/A
(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, par value $0.001 per share
DYAI
The Nasdaq Stock Market
LLC
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 1.01
Entry into a Material Definitive Agreement.
Purchase
Agreements
On
August 13, 2026, Dyadic International, Inc. (the “Company”) entered into (i) a common stock purchase agreement (the “Common
Stock Purchase Agreement”) with certain investors (the “Common Stock Purchasers”), pursuant to which the Company agreed
to issue and sell to such Common Stock Purchasers in a registered direct offering (the “Registered Offering”) an aggregate
of 3,625,000 shares (the “Shares”) of common stock, par value $0.001 per share (the “Common Stock”), of the Company,
at a purchase price of $0.795 per share; and (ii) a securities purchase agreement (the “Warrant Securities Purchase Agreement”
and together with the Common Stock Purchase Agreement, the “Purchase Agreements”), pursuant to which the Company agreed to
issue and sell to the purchasers thereto (the “Warrant Purchasers”) in a concurrent private placement (the “Concurrent
Private Placement”), warrants (the “Common Warrants”) to purchase 3,625,000 shares of Common Stock (the “Common
Warrant Shares”) at a purchase price of $0.005 per Common Warrant and with an exercise price of $0.84 per share.
The
closing of each of the Registered Offering and the Concurrent Private Placement is expected to occur on or about August 14, 2026, subject
to the satisfaction of customary closing conditions.
The
aggregate gross proceeds to the Company from the Registered Offering and the Concurrent Private Placement are expected to be approximately
$2.9 million, before deducting offering expenses payable by the Company. The Company intends to use the net proceeds from the Registered
Offering and the Concurrent Private Placement, for general corporate purposes, including for research and development, sales and marketing
initiatives and general administrative expenses, working capital and capital expenditures, as well as potential acquisitions and other
strategic transactions.
The
Shares in the Registered Offering are being offered pursuant to the Company’s effective shelf registration statement on Form S-3
(File No. 333-273829), including a base prospectus contained therein, which was originally filed with the Securities and Exchange Commission
(the “SEC”) on August 9, 2023, and that became effective on August 25, 2023, and a related prospectus supplement, dated August
13, 2026.
The
Purchase Agreements each contain customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company, including for liabilities arising under the Securities Act of 1933, as amended (the “Securities
Act”), other obligations of the parties and termination provisions. The representations, warranties and covenants contained in
the Purchase Agreements were made only for the purposes of such agreements and as of the specific dates, were solely for the benefit
of the parties to such agreements and may be subject to limitations agreed upon by the contracting parties.
Registration
Rights Agreement
In
connection with the Concurrent Private Placement, on August 13, 2026, the Company entered into a registration rights agreement (the “Registration
Rights Agreement”) with the Warrant Purchasers pursuant to which the Company has agreed to file a registration statement to register
the resale of the Common Warrant Shares within 30 days after the closing of the Registered Offering and the Concurrent Private Placement.
The Registration Rights Agreement contains customary representations, warranties and agreements by the Company and customary penalties
for failure to have the registration statement timely filed or declared effective.
Placement
Agent Agreement
In
connection with the Registered Offering and the Concurrent Private Placement, the Company also entered into a placement agent
agreement, dated August 13, 2026 (the “Placement Agent Agreement”), with Aegis Capital Corp. (the “Placement
Agent”). The Placement Agent Agreement also includes customary indemnification and contribution provisions in favor of the
Placement Agent.
Standstill
Restrictions
The
Company agreed, in the Placement Agent Agreement and the Purchase Agreements, to certain restrictions on the issuance and sale
of its shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock, for 90 days
after the Release Date (as defined in the Warrant Securities Purchase Agreement). These restrictions do not apply to, in addition
to certain customary exceptions, securities issued pursuant to acquisitions or strategic transactions (whether by merger, consolidation,
purchase of equity, purchase of assets, reorganization or otherwise) approved by a majority of the disinterested directors of the Company.
In
addition, the Company’s directors, executive officers, employees and shareholders holding at least 10% of the Company’s outstanding
Common Stock immediately upon the closing of the Registered Offering and the Concurrent Private Placement have agreed, subject to certain
exceptions, not to offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of or announce the intention to otherwise
dispose of, or enter into any swap, hedge or similar agreement or arrangement that transfers, in whole or in part, the economic risk
of ownership of, directly or indirectly, engage in any short selling of any shares of Common Stock or securities convertible into or
exchangeable or exercisable for any shares of Common Stock, whether currently owned or subsequently acquired, without the prior written
consent of the placement agent, for a period of 90 days after the Release Date (as defined in the Warrant Securities Purchase Agreement).
The
foregoing description of the Purchase Agreements, Registration Rights Agreement, Placement Agent Agreement, and Common Warrants
does not purport to be complete and is qualified in its entirety by the full text of the forms of the Common Stock Purchase Agreement,
Warrant Securities Purchase Agreement, Registration Rights Agreement, Placement Agent Agreement, and Common Warrants, copies
of which are attached hereto as Exhibits 10.1, 10.2, 10.3, 10.4 and 4.1 respectively, to this Current Report on Form 8-K and are incorporated
by reference herein. A copy of the opinion of White & Case LLP relating to the legality of the issuance and sale of the shares
of Common Stock is attached as Exhibit 5.1 to this Current Report on Form 8-K.
This
Current Report on Form 8-K, including the exhibits attached hereto, shall not constitute an offer to sell or the solicitation of an offer
to buy the shares of common stock discussed herein, nor shall there be any offer, solicitation, or sale of the shares of common stock
in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state or other jurisdiction.
Item 3.02
Unregistered Sales of
Equity Securities.
The
information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Common Warrants and Common Warrant Shares is
incorporated herein by reference.
The
Common Warrants are being offered in a private placement pursuant to the exemption from the registration requirements of the Securities
Act, provided by Section 4(a)(2) thereof as transactions not involving a public offering and/or Rule 506 promulgated thereunder as sales
to accredited investors. The Common Warrants or the Common Warrant Shares have not been registered under the Securities Act and will
be issued, if at all, pursuant to the same exemption.
Item 8.01
Other Events.
A
copy of the press release announcing the Registered Offering and the Concurrent Private Placement is attached to this Current Report
as Exhibit 99.1.
Item 9.01
Financial Statements and
Exhibits.
Exhibit
No.
Description
4.1
Form of Common Warrant.
5.1
Opinion
of White & Case LLP.
10.1*
Form of Common Stock Purchase Agreement.
10.2*
Form of Warrant Securities Purchase Agreement.
10.3
Form of Registration Rights Agreement.
10.4
Placement Agent Agreement, dated August 13, 2026, by and between Dyadic International, Inc. and Aegis Capital Corp.
23.1
Consent
of White & Case LLP (contained in Exhibit 5.1).
99.1
Press
release issued by Dyadic International, Inc., dated August 13, 2026.
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document).
*
Certain
portions of this exhibit have been redacted pursuant to Item 601(b)(10)(iv) of Regulation S-K. The Company agrees to provide on a
supplemental basis an unredacted copy of the exhibit to the Securities and Exchange Commission upon its request.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
August 14, 2026
DYADIC INTERNATIONAL, INC.
By:
/s/ Mark A. Emalfarb
Name:
Mark A. Emalfarb
Title:
Chief Executive Officer
EX-4.1
EX-4.1
Filename: ex4-1.htm · Sequence: 2
Exhibit
4.1
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH
A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
PIPE
COMMON WARRANT TO PURCHASE COMMON STOCK
DYADIC
INTERNATIONAL, INC.
Warrant
Shares: [●]
Initial
Exercise Date: [●]
Issuance
Date: [●]
THIS
WARRANT TO PURCHASE COMMON STOCK (the “Warrant”) certifies that, for value received, [●] or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and
the conditions hereinafter set forth, at any time on or after the Initial Exercise Date and on or prior to 5:00 p.m. (New York City time)
on the fifth anniversary of the Release Date (the “Termination Date”) but not thereafter, to subscribe for
and purchase from Dyadic International, Inc., a Delaware corporation (the “Company”), up to [●] shares
(as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. Subject to the provisions of Section
2.3, the purchase price of one (1) share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section
2.2.
1. Definitions.
In addition to the terms defined elsewhere in this Warrant or in the Securities Purchase
Agreement dated August 13, 2026 by and among the Company and the investors (the “Purchasers”)
referred to therein (the “Securities Purchase Agreement”), the
following terms have the meanings indicated in this Section 1:
1.1.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled
by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.2.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the
Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the
Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink
Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share
of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent
appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
1.3.
“Board of Directors” means the board of directors of the Company.
1.4.
“Business Day” means a Calendar Day other than a Saturday, Sunday or any other Calendar Day which is a federal legal
holiday in the United States or any Calendar Day on which the commercial banks in the City of New York are required by law or other governmental
action to close, provided that the commercial banks in the City of New York shall not be deemed to be required to be closed due to a
“stay at home,” “shelter in place,” “non-essential employee” or similar orders or restrictions or
the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer
systems (including for wire transfers) of commercial banks in the City of New York generally are open for use by customers on such Calendar
Day.
1.5.
“Calendar Day” means each and every day of the week (Sunday, Monday, Tuesday, Wednesday, Thursday, Friday and Saturday).
1.6.
“Commission” means the United States Securities and Exchange Commission.
1.7.
“Common Stock” means the common stock of the Company, $0.001 par value per share, and any other class of securities
into which such securities may hereafter be reclassified or changed.
1.8.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder
thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other
instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.
1.9.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
1.10.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint
venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
1.11.
“Release Date” shall have the meaning set forth in the Securities Purchase Agreement.
1.12.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
2
1.13.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
1.14.
“Trading Day” means a Calendar Day on which the principal Trading Market is open for trading.
1.15.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for
trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
1.16.
“Transaction Documents” means the Securities Purchase Agreement, these Warrants, the Registration Rights Agreement,
the Placement Agent Agreement, the Lock-Up Agreement and all exhibits and schedules thereto and hereto and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
1.17.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company,
with a mailing address of 1 State Street, 30th Floor, New York, NY 10004, and any successor transfer agent of the Company.
1.18.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common
Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the
nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market,
the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.19.
“Warrants” means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Securities
Purchase Agreement.
3
2. Exercise.
2.1.
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed
PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise substantially in the form attached hereto as Exhibit
2.1 (the “Notice of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined in Section 2.6.1 herein) following the date of exercise as aforesaid, the
Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer
or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2.3 below is specified
in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other
type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation
within three (3) Trading Days after the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of
this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering
the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased.
The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The
Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day after receipt of such notice. The Holder
and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following
the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given
time may be less than the amount stated on the face hereof.
2.2.
Exercise Price. The exercise price per Warrant Share shall be $0.84, subject to adjustment hereunder (the “Exercise
Price”).
2.3.
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder or the resale of the Warrant Shares by the Holder,
then this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the
Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A)
= as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable
Notice of Exercise if such Notice of Exercise is (1) delivered pursuant to Section 2.1 hereof
on a Calendar Day that is not a Trading Day or (2) delivered pursuant to Section 2.1 hereof
on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading
Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise or (z) the highest Bid Price of the
Common Stock on the principal Trading Market as reported by Bloomberg L.P. within two (2)
hours of the Holder’s delivery of the Notice of Exercise pursuant to Section 2.1 hereof
if such Notice of Exercise is delivered during “regular trading hours,” or within
two (2) hours after the close of “regular trading hours” on a Trading Day or
(iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice
of Exercise is a Trading Day and such Notice of Exercise is delivered pursuant to Section
2.1 hereof two (2) or more hours following the close of “regular trading hours”
on such Trading Day;
(B)
= the
Exercise Price of this Warrant, as adjusted hereunder; and
(X)
= the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance
with the terms of this Warrant if such exercise were by means of a cash exercise rather than
a cashless exercise.
4
2.4.
Automatic Cashless Exercise on Termination Date. Notwithstanding anything herein to the contrary, on the Termination Date,
this Warrant shall be automatically exercised via cashless exercise pursuant to Section 2.3. If such automatic exercise would result
in the Holder exceeding the Beneficial Ownership Limitation, as defined in Section 2.7 hereof, then the Company shall hold in abeyance
delivery of any Warrant Shares in excess of such Beneficial Ownership Limitation until such time as the Holder notifies the Company that
delivery of such Warrant Shares would not exceed the Beneficial Ownership Limitation.
2.5.
Holding Period for Cashless Exercise. If Warrant Shares are issued in a cashless exercise, the parties acknowledge and
agree that in accordance with Section 3(a)(9) of the Securities Act, the holding period of the Warrant Shares being issued may be tacked
on to the holding period of this Warrant. Without limiting any other provision of this Warrant or the Securities Purchase Agreement,
assuming (i) the Holder is not an Affiliate of the Company, and (ii) all of the applicable conditions of Rule 144 promulgated under the
Securities Act with respect to Holder and the Warrant Shares are met in the case of such a cashless exercise, the Company agrees that
the Company will cause the removal of the legend from such Warrant Shares (including by delivering an opinion of counsel to the Company
to the Company’s transfer agent at its own expense to ensure the foregoing), and the Company agrees that the Holder is under no
obligation to sell the Warrant Shares issuable upon the exercise of the Warrant prior to removing the legend. The Company agrees not
to take any position contrary to this Section 2.5.
2.6.
Mechanics of Exercise.
2.6.1.
Delivery of Warrant Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 (assuming cashless exercise of the Warrants) and otherwise by physical delivery of a certificate or by electronic
delivery (at the election of the Holder), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after the
delivery to the Company of the Notice of Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after
the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon
delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the
Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided
that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one
(1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise.
Notwithstanding anything herein to the contrary, upon delivery of the Notice of Exercise, the Holder shall immediately be deemed for
purposes of Regulation SHO under the Exchange Act to have become the holder of the Warrant Shares irrespective of the date of delivery
of the Warrant Shares. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise
by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each
$1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise),
$10 per Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each
Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company
agrees to maintain a Transfer Agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable.
As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of
Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of
the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m.
(New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Securities Purchase
Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial
Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of
the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
2.6.2.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
5
2.6.3.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2.6.1 by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
2.6.4.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2.6.1 above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which
(x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored and return any amount received by the Company in respect of the Exercise Price for those Warrant Shares (in which case
such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had
the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having
a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate
sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall
be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder
in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise
of the Warrant as required pursuant to the terms hereof.
2.6.5.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
2.6.6.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the
Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;
provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit 2.6.6 duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto. The Company shall pay all Transfer Agent fees required for same-Trading Day processing of any Notice of Exercise
and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for
same-Trading Day electronic delivery of the Warrant Shares.
2.6.7.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
6
2.7.
Holder’s Exercise Limitations. Notwithstanding anything to the contrary contained herein, the Company shall not effect
any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, and any attempted exercise
shall be null and void and of no effect, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates and any other Person whose beneficial ownership
of the Common Stock would or could be aggregated with the Holder’s for purposes of Section 13(d) (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties
shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2.7,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.
To the extent that the limitation contained in this Section 2.7 applies, the determination of whether this Warrant is exercisable (in
relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant
is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to
any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2.7, in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in the most recent of (A) the Company’s most recent periodic
or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent
written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written
or oral request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares
of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect
to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties
since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2.7, provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to
the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2.7 shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until sixty-one (61) Calendar Days after
such notice is delivered to the Company. In the event that the issuance of shares of Common Stock to the Holder upon exercise of this
Warrant results in the Holder, together with the Attribution Parties, collectively being deemed to beneficially own, in the aggregate,
more than the Beneficial Ownership Limitation, the number of shares so issued by which the aggregate beneficial ownership of the Holder
and its Attribution Parties exceeds such limitation (the “Excess Shares”) shall be deemed to be null and void
and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess
Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return
to the Holder the Exercise Price paid by the Holder for the Excess Shares and the Holder shall return the Excess Shares to the Company.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of
this Section 2.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial
Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph may not be amended, modified or waived and shall apply to a successor holder of this Warrant.
7
3. Certain
Adjustments.
3.1.
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable
in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise
of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares
of Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of
which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of Shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3.1 shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or re-classification.
3.2.
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3.1 above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all (or
substantially all) of the record holders of any class of shares of Common Stock (the “Purchase Rights”), then
the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
3.3.
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend
or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) holders of shares of Common Stock,
by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property
or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall
be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined
for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any
such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to
participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution
to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever,
as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has
not been partially or completely exercised at the time of such Distribution, such portion of the Distribution shall be held in abeyance
for the benefit of the Holder until the Holder has exercised this Warrant.
8
3.4.
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or
any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of
the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock
or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2.7 on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2.7 on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary,
in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option,
exercisable at any time concurrently with, or within 30 Trading Days after, the consummation of the Fundamental Transaction (or, if later,
the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the
Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on
the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the
Company’s control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive
from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value
of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection
with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the
holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental
Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental
Transaction, such holders of Common Stock will be deemed to have received common stock/shares of the Successor Entity (which Entity may
be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value”
means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg,
L.P. (“Bloomberg”) determined as of the Trading Day of consummation of the applicable contemplated Fundamental
Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal
to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date,
(B) an expected volatility equal to the greater of (1) 100% and (2) the 100 day volatility as obtained from the HVT function on Bloomberg
(determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable
contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum
of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental
Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the public announcement of
the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending
on the Trading Day of the Holder’s request pursuant to this Section 3.4 and (D) a remaining option time equal to the time between
the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date and (E) a zero cost
of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration)
within the later of (i) five (5) Business Days after the Holder’s election and (ii) the date of consummation of the Fundamental
Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the
“Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other
Transaction Documents in accordance with the provisions of this Section 3.4 pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at
the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant that is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value
of the shares of Common Stock prior to such Fundamental Transaction and the value of such shares of capital stock, such number of shares
of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to
the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the
occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant
(so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and
the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity
or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company,
may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the
obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company
and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt,
the Holder shall be entitled to the benefits of the provisions of this Section 3.4 regardless of (i) whether the Company has sufficient
authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the
Initial Exercise Date.
9
3.5.
Calculations. All calculations under this Section 3 shall be made to the nearest fraction of a cent as in the initial Exercise
Price or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed
to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares,
if any) issued and outstanding.
3.6.
Notice to Holder.
3.6.1.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the
Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
3.6.2.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock,
(C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any
sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least twenty (20) Calendar Days prior to the applicable record
or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock
of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided
that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate
action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material,
non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the
date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
3.7.
Voluntary Adjustment by Company. Subject to the rules and regulations of the Trading Market and the consent of the Holder,
the Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of
time deemed appropriate by the Board of Directors.
10
4. Transfer
of Warrant.
4.1.
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4.4
hereof, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or
in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment
of this Warrant substantially in the form attached hereto as Exhibit 2.6.6 duly executed by the Holder or its agent or attorney
and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment,
the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination
or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of
this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which
case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days after the date on which the Holder delivers
an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised
by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
4.2.
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4.1, as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial Issuance Date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
4.3.
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.
4.4.
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions
or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that
(x) the transferor (other than in connection with a transfer to an Affiliate of the transferor) provide to the Company an opinion of
counsel to the effect that such transfer does not require registration of such transferred Warrant under the Securities Act and (y) that
the transferee agree in writing to be bound by the terms of the Securities Purchase Agreement and the Registration Rights Agreement,
with all the rights and obligations of a Purchaser under such agreements.
4.5.
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
11
5. Miscellaneous.
5.1.
No Rights as Stockholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2.6.1, except
as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2.3 or to receive cash payments pursuant to Section 2.6.1 and Section 2.6.4 herein, in no event shall the Company
be required to net cash settle an exercise of this Warrant.
5.2.
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
5.3.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Trading Day, then such action may be taken, or such right may be exercised, on the next succeeding
Trading Day.
5.4.
Authorized Shares.
5.4.1.
Reservation of Authorized and Unissued Shares. The Company covenants that, while the Warrant is outstanding, it will reserve
from its authorized and unissued Common Stock a sufficient number of shares of Common Stock to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of
the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant
Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading
Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise
of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment
for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable (which means that no
further sums are required to be paid by the holders thereof in connection with the issue thereof) and free from all taxes, liens and
charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue). If the Company does not have a sufficient number of authorized and unissued shares of Common Stock available to honor
the exercise of Warrants, the Company shall allocate the available number of Warrant Shares on a pro rata basis among all Holders exercising
Warrants, until such time as the Company has a sufficient number of authorized Common Stock to issue all Warrant Shares in full.
12
5.4.2.
Noncircumvention. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking
of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of
this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
5.4.3.
Authorizations, Exemptions and Consents. Before taking any action that would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
5.5.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers,
stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City
of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding
the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under
the federal securities laws.
13
5.6.
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
5.7.
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact
that the right to exercise this Warrant terminates on the Termination Date. No provision of this Warrant shall be construed as a waiver
by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission
thereunder. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
5.8.
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at 1044 North U.S. Highway One, Suite 201, Jupiter, FL 33477-5094, Attention: Mark Emalfarb,
Chief Executive Officer, email address: memalfarb@dyadic.com, or such other email address or address as the Company may specify for such
purposes by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder
shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each
Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered
via e-mail at the e-mail address set forth in this Section 5.8 prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading
Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
5.8 on a Calendar Day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading
Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the
party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material,
non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K.
14
5.9.
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
5.10.
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
5.11.
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
5.12.
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company,
on the one hand, and a majority-in-interest of Holders of the Warrants, on the other hand; provided, that the provisions of Section 2.7
and this Section 5.12 may not be amended, modified, revised or waived.
5.13.
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
5.14.
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
[DYAI
Investor PIPE Common Warrant Signature Page Follows]
15
[DYAI
Investor PIPE Common Warrant Signature Page]
IN
WITNESS WHEREOF, the Company has caused this PIPE Common Warrant to be executed by its officer thereunto duly authorized as of the date
first above indicated.
DYADIC INTERNATIONAL, INC.
By:
Name:
Mark Emalfarb
Its:
Chief Executive Officer
Exhibit
2.1
NOTICE
OF EXERCISE
To:
DYADIC INTERNATIONAL, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ]
in lawful money of the United States.
[ ]
if permitted the cancellation of such number of Warrant Shares as is necessary,
in accordance with the formula set forth in Section 2.3, to exercise this Warrant with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise procedure set forth in Section 2.3.
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
Notwithstanding
anything to the contrary contained herein, this Notice of Exercise shall constitute a representation by the Holder of the Warrant submitting
this Notice of Exercise that after giving effect to the exercise provided for in this Notice of Exercise, such Holder (together with
its Attribution Parties) will not have beneficial ownership (together with the beneficial ownership of such Person’s Attribution
Parties) of a number of shares of Common Stock which exceeds the Beneficial Ownership Limitation (as defined in the Warrant) of the total
outstanding shares of Common Stock of the Company as determined pursuant to the provisions of Section 2.7 of the Warrant.
[DYAI
Investor PIPE Common Warrant Exercise Notice – Investor Signature Page]
Name
of Investing Entity:
Signature
of Authorized Signatory of Investing Entity:
Name
of Authorized Signatory:
Title
of Authorized Signatory:
Date:
Exhibit
2.6.6
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares of Common Stock.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name:
Address:
Phone
Number:
Address:
Date:
Holder’s
Signature:
Holder’s
Address:
EX-5.1
EX-5.1
Filename: ex5-1.htm · Sequence: 3
Exhibit
5.1
August 13, 2026
Dyadic International, Inc.
1044 North U.S. Highway One, Suite 201
Jupiter, Florida 33477
Ladies and Gentlemen:
We
have acted as New York counsel to Dyadic International, Inc., a corporation organized under the laws of Delaware (the “Company”),
in connection with the offering by the Company of an aggregate of 3,625,000 shares (the “Shares”) of the Company’s
common stock, par value $0.001 per share (the “Common Stock”), to the purchasers identified therein (the “Purchasers”).
The Shares are included in a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Securities
Act”), filed with the Securities and Exchange Commission (the “Commission”) on August 9, 2023 (Registration
No. 333-273829) (the “Registration Statement”), and are being offered pursuant to a base prospectus dated August 9,
2023 (the “Base Prospectus”) and a prospectus supplement dated August 13, 2026 filed with the Commission pursuant
to Rule 424(b) under the Securities Act (together with the Base Prospectus, the “Prospectus”). The Shares are sold
pursuant to a Common Stock Purchase Agreement dated as of August 13, 2026, between the Company and the Purchasers named therein (the
“Purchase Agreement”), as described in the Registration Statement and the Prospectus. Aegis Capital Corp. is acting
as placement agent for the offering pursuant to a placement agent agreement between the Company and Aegis Capital Corp. (the “Placement
Agent Agreement”).
This
opinion letter is rendered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion
is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus, or any prospectus
filed pursuant to Rule 424(b) with respect thereto, other than as expressly stated herein with respect to the issuance of the Shares.
In connection with our opinions expressed below, we have examined originals or copies certified or otherwise identified to our satisfaction
of the following documents and such other documents, corporate records, certificates and other statements of government officials and
corporate officers of the Company as we deemed necessary for the purposes of the opinions set forth in this opinion letter:
(a) the
Registration Statement;
(b) the
Prospectus;
(c) the
Purchase Agreement;
(d) the
Placement Agent Agreement;
(e) a
copy of the Restated Certificate of Incorporation of the Company;
(f) a
copy of the Fourth Amended and Restated Bylaws of the Company, filed as Exhibit 3.1 to the
Company’s Current Report on Form 8-K filed with the Commission on June 2, 2025;
(g) a
copy of the resolutions of the Company’s board of directors adopted on August 12, 2026;
(h) a
certificate dated the date hereof of the Secretary of the Company, certifying as to the name,
title and incumbency of officers of the Company signing the Purchase Agreement or other documents
in connection therewith; and
(i) a
copy of a certificate, dated the date hereof, of the Delaware Secretary of State, certifying
the existence and good standing of the Company under the laws of the State of Delaware.
We
have relied, to the extent we deem such reliance proper, upon such certificates or comparable documents of officers and representatives
of the Company and of public officials and upon statements and information furnished by officers and representatives of the Company with
respect to the accuracy of material factual matters contained therein which were not independently established by us. In rendering the
opinions expressed below, we have assumed, without independent investigation or verification of any kind, the genuineness of all signatures
on documents we have reviewed, the legal capacity and competency of all natural persons signing all such documents, the authenticity
and completeness of all documents submitted to us as originals, the conformity to authentic, complete original documents of all documents
submitted to us as copies, the truthfulness, completeness and correctness of all factual representations and statements contained in
all documents we have reviewed, the accuracy and completeness of all public records examined by us, and the accuracy of all statements
in certificates of officers of the Company that we reviewed. In addition, in rendering the opinions expressed below, we have assumed
that the Shares will be executed and countersigned by the transfer agent or registrar therefor as contemplated in the Registration Statement.
Based
upon the foregoing assumptions and the assumptions set forth below, and subject to the qualifications and limitations stated herein,
having considered such questions of law as we have deemed necessary as a basis for the opinions expressed below, we are of the opinion
that the Shares, when sold and issued in accordance with the Purchase Agreement and as described in the Registration Statement and Prospectus,
will be validly issued, fully paid and nonassessable.
The
opinion expressed above is limited to questions arising under the Delaware General Corporation Law. We do not express any opinion as
to the laws of any other jurisdiction.
This
opinion letter 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 Securities Act. This opinion letter is provided solely in connection with
the distribution of the Shares pursuant to the Registration Statement and is not to be relied upon for any other purpose.
The
opinion expressed above is as of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect
of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation,
legislative and other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this
opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they
affect the opinions expressed in this opinion letter.
We
hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated August 13,
2026 and its incorporation by reference into the Registration Statement and to the reference to our firm as counsel for the Company under
the caption “Legal Matters” in the Prospectus. In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ White & Case LLP
DV:AJ:JW:FL
EX-10.1
EX-10.1
Filename: ex10-1.htm · Sequence: 4
Exhibit
10.1
STOCK
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of August 13, 2026, between Dyadic International,
Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (including
their respective successors and assigns, each a “Purchaser” and collectively, the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective shelf registration statement on Form S-3
(File No. 333-273829) under the Securities Act of 1933, as amended (the “Securities Act”), the Company desires
to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, shares of Common
Stock (as defined below) of the Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
1.
Definitions. In addition to the terms defined
elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1:
1.1.
“Acquiring Person” shall have the meaning ascribed to such term in Section 4.5.
1.2.
“Action” shall have the meaning ascribed to such term in Section 3.1.11.
1.3.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.4.
“Agreement” shall have the meaning ascribed to such term in the preamble.
1.5.
“BHCA” shall have the meaning ascribed to such term in Section 3.1.43.
1.6.
“Board of Directors” means the board of directors of the Company.
1.7.
“Business Day” means a Calendar Day other than a Saturday, Sunday or any other Calendar Day which is a federal
legal holiday in the United States or any Calendar Day on which the commercial banks in the City of New York are required by law or other
governmental action to close, provided that the commercial banks in the City of New York shall not be deemed to be required to be closed
due to a “stay at home,” “shelter in place,” “non-essential employee” or similar orders or restrictions
or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer
systems (including for wire transfers) of commercial banks in the City of New York generally are open for use by customers on such Calendar
Day.
1.8.
“Calendar Day” means each and every day of the week (Sunday, Monday, Tuesday, Wednesday, Thursday, Friday and
Saturday).
1.9.
“Closing” means the closing of the purchase and sale of the Shares pursuant to Section 2.1.
1.10.
“Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered
by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount
and (ii) the Company’s obligations to deliver the Shares, in each case, have been satisfied or waived, but in no event later than
the second (2nd) Trading Day following the date hereof.
1.11.
“Code” means the Internal Revenue Code of 1986, as amended.
1.12.
“Commission” means the United States Securities and Exchange Commission.
1.13.
“Common Stock” means the common stock of the Company, $0.001 par value per share, and any other class of securities
into which such securities may hereafter be reclassified or changed.
1.14.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the
holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock.
1.15.
“Company” shall have the meaning ascribed to such term in the preamble.
1.16.
“Company Counsel” means with respect to U.S. federal securities law and New York law, White & Case LLP.
1.17.
“Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
1.18.
“Disclosure Time” means, (i) if this Agreement is signed on a Calendar Day that is not a Trading Day or after
9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading
Day immediately following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this
Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m.
(New York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
1.19.
[Reserved]
1.20.
“DVP” shall have the meaning ascribed to such term in Section 2.1.
1.21.
“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1.20.
1.22.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
2
1.23.
“Exempt Issuance” means (i) any conventional bank loans that are not convertible into, or exercisable or exchangeable
for, shares of Common Stock or Common Stock Equivalents and do not involve any issuance of any shares of Common Stock or Common Stock
Equivalents or other security of the Company in connection therewith; (ii) shares of Common Stock or options issued to employees, officers
or directors of the Company pursuant to the Company’s equity incentive plans or pursuant to the compensation agreements previously
authorized by the Board of Directors; (iii) securities issued upon the exercise or exchange of or conversion of any Shares issued hereunder
and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date
of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such
securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock
splits or combinations) or to extend the term of such securities; and (iv) securities issued pursuant to acquisitions or strategic transactions
(whether by merger, consolidation, purchase of equity, purchase of assets, reorganization or otherwise) approved by a majority of the
disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in
Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during
the ninety (90) days following the Release Date (as defined in that certain Securities Purchase Agreement with respect to the issuance
of warrants under Regulation D, dated as of the date hereof by and among the Company and the purchasers party thereto), and provided
that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries,
an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company
additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
1.24.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
1.25.
“FDA” shall have the meaning ascribed to such term in Section 3.1.48.
1.26.
“FDCA” shall have the meaning ascribed to such term in Section 3.1.48.
1.27.
“Federal Reserve” shall have the meaning ascribed to such term in Section 3.1.43.
1.28.
“GAAP” shall have the meaning ascribed to such term in Section 3.1.9.
1.29.
[Reserved].
1.30.
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1.17.
1.31.
[Reserved].
1.32.
“IT Systems and Data” shall have the meaning ascribed to such term in Section 3.1.49.
3
1.33.
“Liens” means a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction.
1.34.
“Lock-Up Agreement” means each Lock-Up Agreement, dated as of the date hereof, by and between the Company and
each of the directors, executive officers, employees and stockholders holding at least ten percent (10%) of the outstanding shares of
Common Stock, in the form of Exhibit 1.37 attached hereto.
1.35.
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1.2.
1.36.
“Material Permits” shall have the meaning ascribed to such term in Section 3.1.15.
1.37.
“Money Laundering Laws” shall have the meaning ascribed to such term in Section 3.1.44.
1.38.
“OFAC” shall have the meaning ascribed to such term in Section 3.1.41.
1.39.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind.
1.40.
“PFIC” shall have the meaning ascribed to such term in Section 4.18.
1.41.
“Pharmaceutical Product” shall have the meaning ascribed to such term in Section 3.1.48.
1.42.
“Placement Agent” means Aegis Capital Corp.
1.43.
“Placement Agent Agreement” means the placement agent agreement, dated on or about the date hereof, between
the Company and the Placement Agent relating to the purchase and sale of the Shares under this Agreement and the purchase and sale of
certain other securities pursuant to the terms of such Placement Agent Agreement.
1.44.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal
investigation or partial proceeding, such as a deposition), whether commenced or threatened.
1.45.
“Prospectus” means the final base prospectus filed for the Shelf Registration Statement.
1.46.
“Prospectus Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities
Act that is filed with the Commission by the Company at or prior to closing the Closing.
1.47.
[Reserved].
4
1.48.
“Purchase Price” equals $0.795, subject to adjustment for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
1.49.
“Purchaser” shall have the meaning ascribed to such term in the preamble.
1.50.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.8.
1.51.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1.5.
1.52.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be
amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially
the same purpose and effect as such Rule.
1.53.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be
amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially
the same purpose and effect as such Rule.
1.54.
“SEC Reports” shall have the meaning ascribed to such term in Section 3.1.9.
1.55.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.56.
“Shares” means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
1.57.
“Shelf Registration Statement” means the effective registration statement on Form S-3 with Commission (File
No. 333-273829), including all information, documents and exhibits filed with or incorporated by reference into such registration statement,
which registers the Shares.
1.58.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock).
1.59.
“Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Shares purchased
hereunder at the Purchase Price as specified below such Purchaser’s name on the signature page of this Agreement and next to the
heading “Subscription Amount,” in United States dollars and in immediately available funds.
1.60.
“Subsidiary” means any subsidiary of the Company as set forth in Schedule 3.1.1 and shall, where applicable,
also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
5
1.61.
“Trading Day” means a Calendar Day on which the principal Trading Market is open for trading.
1.62.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, the New York Stock Exchange, the OTCQB, OTCQX, Pink Open Market (or any successors to any of the foregoing).
1.63.
“Transaction Documents” means this Agreement, the Shares, the Lock-Up Agreements and all exhibits and schedules
thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
1.64.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company,
with a mailing address of 1 State Street, 30th Floor, New York, NY 10004, and any successor transfer agent of the Company.
1.65.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if
the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date
(or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the OTC Pink (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per
share of Common Stock so reported, or (d) in all other cases, the fair market value of the Common Stock as determined by an independent
appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
2.
Purchase and Sale.
2.1.
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with
the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not
jointly, agree to purchase, the number of Shares listed on the respective Purchaser’s signature page hereto. Each Purchaser shall
make such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser available to be
delivered to the Company (or its designee) via DVP (as defined below), and the Company shall deliver to each Purchaser its respective
Shares, as determined pursuant to Section 2.2.1, and the Company and each Purchaser shall deliver the other items set forth in Section
2.2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.3.1 and 2.3.2, the Closing
shall occur at the offices of counsel to the Placement Agent or such other location (or remotely by electronic means) as the parties
shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus
Payment” (“DVP”) (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’
names and addresses, without any restrictive legends, and such Shares shall be released by the Transfer Agent directly to the account(s)
at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver
such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer
to the Company). Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of this Agreement
by the Company and an applicable Purchaser, through and including the time immediately prior to the Closing (the “Pre-Settlement
Period”), if such Purchaser sells to any Person all, or any portion, of any Shares to be issued hereunder to such Purchaser
at the Closing (collectively, the “Pre-Settlement Shares”), such Purchaser shall, automatically hereunder (without
any additional required actions by such Purchaser or the Company), be deemed to be unconditionally bound to purchase, and the Company
shall be deemed unconditionally to sell, such Pre-Settlement Shares at the Closing; provided, that the Company shall not be required
to deliver any Pre-Settlement Shares to such Purchaser prior to the Company’s receipt of the purchase price for such Pre-Settlement
Shares hereunder, and provided further that the Company hereby acknowledges and agrees that the foregoing shall not constitute a representation
or covenant by such Purchaser as to whether or not such Purchaser will elect to sell any Pre-Settlement Shares during the Pre-Settlement
Period. The decision to sell any Pre-Settlement Shares will be made in the sole discretion of such Purchaser from time to time, including
during the Pre-Settlement Period.
6
2.2.
Deliveries.
2.2.1.
The Company shall deliver or cause to be delivered to each Purchaser or the Placement Agent, as appropriate, the following at the times
stated:
2.2.1.1
on the date hereof:
2.2.1.1.1.
this Agreement duly executed by the Company.
2.2.1.1.2.
the Placement Agent Agreement, duly executed by the Company.
2.2.1.1.3.
a certificate executed by the Chief Financial Officer of the Company in customary form reasonably satisfactory to the Placement Agent
and its counsel.
2.2.1.1.4.
the Lock-Up Agreements.
2.2.1.2
on or prior to the Closing Date:
2.2.1.2.1.
a legal opinion of Company Counsel, addressed to the Placement Agent and the Purchasers, in form and substance reasonably acceptable
to the Placement Agent and the Purchasers.
2.2.1.2.2.
subject to the provisions of Section 2.1 regarding settlement via DVP, a copy of the irrevocable instructions to the Transfer Agent instructing
the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
a number of Shares equal to the number of Shares listed on such Purchaser’s signature page hereto, registered in the name of such
Purchaser.
7
2.2.1.2.3.
subject to the provisions of Section 2.1 regarding settlement via DVP, the Company’s wire instructions, on Company letterhead and
executed by the Chief Executive Officer or Chief Financial Officer.
2.2.1.2.4.
a duly executed and delivered Officers’ Certificate, in customary form reasonably satisfactory to the Placement Agent and its counsel.
2.2.1.2.5.
the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
2.2.2.
Each Purchaser, and the Placement Agent, as applicable, shall deliver or cause to be delivered to the Company the following at the times
stated:
2.2.2.1
on the date hereof:
2.2.2.1.1.
this Agreement duly executed by such Purchaser.
2.2.2.2
on or prior to the Closing Date:
2.2.2.2.1.
such Purchaser’s Subscription Amount shall be made available for DVP settlement with the Company or its designee.
2.2.2.2.2.
the Placement Agent Agreement, duly executed by the Placement Agent.
2.3.
Closing Conditions.
2.3.1.
The obligations of the Company hereunder in connection with the Closing are subject to each of the following conditions being met:
2.3.1.1
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date).
2.3.1.2
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been
performed.
2.3.1.3
the delivery by each Purchaser of the items set forth in Section 2.2.2 of this Agreement.
8
2.3.2.
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to each of the following conditions
being met:
2.3.2.1
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date).
2.3.2.2
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed.
2.3.2.3
the delivery by the Company of the items set forth in Section 2.2.1 of this Agreement.
2.3.2.4
there shall have been no Material Adverse Effect with respect to the Company since the date hereof.
2.3.2.5
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Shares at the Closing.
3.
Representations and Warranties.
3.1.
Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to
each Purchaser:
3.1.1.
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1.1. The Company owns,
directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of
the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free
of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to
the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
9
3.1.2.
Organization and Qualification. Each of the Company and its operating Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
would not, individually or in the aggregate, reasonably be expected to result in: (i) a material adverse effect on the legality, validity
or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s
ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
a “Material Adverse Effect”; provided, however, that “Material Adverse Effect” shall
not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) the announcement,
pendency or completion of the transactions contemplated by the Transaction Documents or (ii) any action required or permitted by the
Transaction Documents or any action taken (or omitted to be taken) with the written consent of or at the written request of Purchaser).
As to all Company and Subsidiary power, authority and qualification, no Proceeding has been instituted in any such jurisdiction revoking,
limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
3.1.3.
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which
it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms
hereof and thereof, will constitute the legal, valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
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3.1.4.
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Shares and the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
3.1.5.
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i)
the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement to the
Shelf Registration Statement with respect to the Shares, (iii) the notice and/or application(s) to each applicable Trading Market for
the issuance and sale of the Shares and the listing of the Shares for trading thereon in the time and manner required thereby, and (iv)
such other filings as are required to be made under applicable state securities laws (the “Required Approvals”).
3.1.6.
Issuance of the Shares. The Shares are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable (which means that no further sums are required to
be paid by the holders thereof in connection with the issue thereof), free and clear of all Liens imposed by the Company other than restrictions
on transfer provided for in the Transaction Documents and applicable law.
11
3.1.7.
Registration Statement. The Company has prepared and filed the Shelf Registration Statement with respect to the Shares
in conformity with the requirements of the Securities Act, which became effective on August 25, 2023, including the Prospectus, and such
amendments and supplements thereto as may have been required to the date of this Agreement. The Shelf Registration Statement is effective
under the Securities Act and no stop order preventing or suspending the effectiveness of the Shelf Registration Statement or suspending
or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or,
to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission,
shall file the Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the Shelf Registration Statement and any
amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Shelf Registration Statement and any
amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will
not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus
or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the
requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The
Company was at the time of the filing of the Shelf Registration Statement eligible to use Form S-3. The Company is eligible to use Form
S-3 under the Securities Act and it meets the 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.
3.1.8.
Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1.8, which Schedule
3.1.8 shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the
date hereof. Other than as stated in Schedule 3.1.8, the Company has not issued any capital stock since its most recently filed periodic
report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans,
the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the
conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the
Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by the Transaction Documents. Except as set forth in Schedule 3.1.8, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares
of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company
or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any
Subsidiary. The issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other
securities to any Person (other than the Purchasers). Except as set forth in Schedule 3.1.8, there are no outstanding securities or instruments
of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or
instrument upon an issuance of securities by the Company or any Subsidiary. Except as set forth in Schedule 3.1.8, there are no outstanding
securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the
Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval
or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Shares. There are
no stockholders’ agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to
which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
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3.1.9.
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus
and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis
or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.
As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange
Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial
statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been
prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved
(“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto, and fairly
present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
3.1.10.
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as set forth on Schedule 3.1.10, (i) there has been no event, occurrence or development that
has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed
in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or
made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase
or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate,
except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Shares contemplated by this Agreement, no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries
or their respective businesses, properties, operations, assets or financial condition that would be required to be disclosed by the Company
under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least
one (1) Trading Day prior to the date that this representation is made.
13
3.1.11.
Litigation. Except as set forth in Schedule 3.1.11, there is no material action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”). None of the Actions set forth on Schedule 3.1.11, (i)
adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or (ii) would, if there
were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary,
nor, to the knowledge of the Company, any director or officer thereof, is or has been the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current
or former director or officer of the Company, except in the ordinary course of business that would not have a Material Adverse Effect.
The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company
or any Subsidiary under the Exchange Act or the Securities Act.
3.1.12.
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
14
3.1.13.
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree, or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
3.1.14.
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws
relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface
or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
3.1.15.
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in
the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect
(“Material Permits”), and neither the Company nor any Subsidiary has received any written notice of proceedings
relating to the revocation or modification of any Material Permit, except where such revocation or modification would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
15
3.1.16.
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to, or have valid and marketable
rights to lease or otherwise use, all real property and all personal property that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except for (i) Liens that do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii)
Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance with GAAP, and the
payment of which is neither delinquent nor subject to penalties. Neither the Company nor any of its Subsidiaries has received any written
notice of any claim of any sort that has been asserted by anyone adverse to the rights of the Company or its Subsidiaries under any of
the leases or subleases or licenses or with respect to the properties mentioned above, or affecting or questioning the rights of the
Company or any Subsidiary to the continued possession or use of the leased or subleased or licensed premises or the properties mentioned
above, other than such claims which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
3.1.17.
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have would reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). None of, and neither the Company nor any Subsidiary has received written notice that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years
after the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial
statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property
Rights violate or infringe upon the rights of any Person, except as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is
no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to
do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
3.1.18.
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage in amount deemed prudent by the Company. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
16
3.1.19.
Transactions with Affiliates and Employees. Except as set forth on Schedule 3.1.19, during the past three fiscal years
and the subsequent interim period through the date of this Agreement, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
3.1.20.
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and
all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all
applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing
Date. Except as set forth on Schedule 3.1.20, the Company and the Subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures
to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The Company’s
certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as
of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the
certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
17
3.1.21.
Certain Fees. Except for the fees and expenses of the Placement Agent, no brokerage or finder’s fees or commissions
are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no
obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated
in this Section 3.1.21 that may be due in connection with the transactions contemplated by the Transaction Documents.
3.1.22.
Registered Offering. The offer and sale of the Shares by the Company to the Purchasers as contemplated hereby is registered under
the Securities Act pursuant to the Shelf Registration Statement and the Prospectus Supplement. The issuance and sale of the Shares hereunder
does not contravene the rules and regulations of the Trading Market.
3.1.23.
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
3.1.24.
Registration Rights. Except as disclosed on Schedule 3.1.24, and except as have been validly complied with or waived with
respect to the transactions contemplated hereby, no Person has any right to cause the Company or any Subsidiary to effect the registration
under the Securities Act of any securities of the Company or any Subsidiary.
3.1.25.
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. Except as disclosed in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received
notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in
the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently
eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is
current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such
electronic transfer.
18
3.1.26.
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the
Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result
of the Company’s issuance of the Shares and the Purchasers’ ownership of the Shares.
3.1.27.
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their
agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company
understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the
Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries,
their respective businesses and the transactions contemplated hereby, is true and correct and does not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date
of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made
and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
3.1.28.
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the
Shares to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require the registration
of any such securities under the Securities Act, or (ii) any applicable stockholder approval provisions of any Trading Market on which
any of the securities of the Company are listed or designated.
3.1.29.
[RESERVED]
3.1.30.
Tax Status. Except as disclosed in Schedule 3.1.30, the Company and its Subsidiaries each (i) has made or filed all material
United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by
any jurisdiction to which it is subject, (ii) has paid all material taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably
adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply,
except in each case where the failure to so file, pay or set aside would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.
19
3.1.31.
[Reserved].
3.1.32.
Foreign Corrupt Practices Act. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of FCPA.
3.1.33.
Accountants. The Company’s accounting firm is Crowe LLP. To the knowledge and belief of the Company, such accounting
firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the
financial statements to be included in the Company’s Annual Report for the now current fiscal year.
3.1.34.
No Disagreements with Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company
and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability
to perform any of its obligations under any of the Transaction Documents.
3.1.35.
Acknowledgment Regarding Purchasers’ Purchase of Shares. The Company acknowledges and agrees that each of the Purchasers
is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or
any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby
is merely incidental to the Purchasers’ purchase of the Shares. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
20
3.1.36.
Acknowledgment Regarding Purchaser’s Trading Activity. Notwithstanding anything in this Agreement or elsewhere herein
to the contrary (except for Sections 3.2.7 and 4.11 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers
has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Shares for any specified
term, (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future transactions, may negatively impact the market
price of the Company’s publicly-traded securities, (iii) any Purchaser, and counter-parties in “derivative” transactions
to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common Stock
and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any
“derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in
hedging activities at various times during the period that the Shares are outstanding, and (z) such hedging activities (if any) could
reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging activities
are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction
Documents.
3.1.37.
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases
of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s placement agent in connection
with the placement of the Shares.
3.1.38.
Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the
Purchasers shall be deemed a representation and warranty by the Company to the Purchasers as to the matters covered thereby.
3.1.39.
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently
completed by each of the Company’s directors and officers and beneficial owner of 5% or more of the shares of Common Stock or Common
Stock Equivalents is true and correct in all respects and the Company has not become aware of any information which would cause the information
disclosed in such questionnaires become inaccurate and incorrect.
3.1.40.
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan, if any, was granted
(i) in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair
market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option
granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has
been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options
with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results
or prospects.
21
3.1.41.
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
3.1.42.
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.
3.1.43.
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding
Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls,
directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent
(25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or
any entity that is subject to the BHCA and to regulation by the Federal Reserve.
3.1.44.
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any
Subsidiary, threatened.
3.1.45.
[RESERVED]
3.1.46.
Other Covered Persons. Other than the Placement Agent, the Company is not aware of any person that has been or will be
paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Securities.
3.1.47.
[RESERVED]
22
3.1.48.
FDA. The preclinical studies and tests and clinical trials conducted by or on behalf of the Company that are described
in the SEC Reports (the “Company Studies and Trials”) were and, if still pending, are being, conducted in all
material respects in accordance with applicable laws, including, without limitation, the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
§§ 301 et seq.) and the rules and regulations promulgated thereunder (the “FDCA”); the descriptions
of the results of the Company Studies and Trials contained in the SEC Reports are accurate in all material respects; the Company has
no knowledge of any other studies or trials not described in the SEC Reports, the results of which are inconsistent with or reasonably
call into question the results described or referred to in the SEC Reports when viewed in the context in which such results are described
and the stage of development; and the Company has not received any written notices, correspondence or other written communication from
the U.S. Food and Drug Administration (the “FDA”) or any foreign, state or local governmental body exercising
comparable authority requiring the termination, suspension or material modification of any Company Studies and Trials, where such termination,
suspension or material modification would reasonably be expected to have a Material Adverse Effect and, to the Company’s knowledge,
there are no reasonable grounds for the same. To the Company’s knowledge, none of the Company Studies and Trials involved any investigator
who has been disqualified as a clinical investigator by the FDA. To the Company’s knowledge, the manufacturing facilities and operations
of its suppliers are operated in compliance in all material respects with all applicable statutes, rules, regulations and policies of
the FDA and comparable regulatory agencies outside of the United States to which the Company is subject.
3.1.49.
Cybersecurity. (i) (a) There has been no security breach or other compromise of or relating to any of the Company’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its
respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology
(collectively, “IT Systems and Data”) and (b) the Company and the Subsidiaries have not been notified of, and
has no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to
its IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized
use, access, misappropriation or modification, except, in the case of clauses (i) and (ii) herein, as would not, individually or in the
aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable
safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy and security
of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent
with industry standards and practices.
3.1.50.
Separate and Independent Purchasers. The Company further (a) represents and warrants and acknowledges and agrees that,
to the knowledge of the Company (i) each Purchaser is participating in the offering of Shares contemplated hereby separately and independently
of each other Purchaser, (ii) no Purchaser has communicated directly with any other Purchaser, (iii) all communications by each Purchaser
concerning the Transaction Documents and the transactions contemplated thereby and any matters related thereto were solely conducted
separately and independently with the Placement Agent without the involvement or inclusion of any other Purchaser and (iv) the Purchasers
do not constitute a “group” as that term is used under Section 13(d) of the Exchange Act, and (b) covenants and agrees not
to take a position to the contrary to the foregoing.
23
3.2.
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which
case they shall be accurate as of such date):
3.2.1.
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing
and in good standing under the law of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance
by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to
which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof,
will constitute the legal, valid and binding obligation of such Purchaser, enforceable against it in accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
3.2.2.
[Reserved].
3.2.3.
Purchaser Status. At the time such Purchaser was offered the Shares, it was, and as of the date hereof it is, either: (i)
an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under
the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a)(1) under the Securities Act.
3.2.4.
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment
in the Shares and, at the present time, is able to afford a complete loss of such investment.
3.2.5.
[Reserved].
24
3.2.6.
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents
(including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering
of the Shares and the merits and risks of investing in the Shares; (ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither
the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect
to the Shares nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Shares and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be and has not been provided to it (other than with respect
to the transactions contemplated by the Transaction Documents). In connection with the issuance of the Shares to such Purchaser, neither
the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
3.2.7.
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such
Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the
material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other
than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of
all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions,
with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
3.2.8.
No Intent to Effect a Change of Control. Such Purchaser has no present intent to effect a “change of control”
of the Company as such term is interpreted and understood under the rules promulgated pursuant to Section 13(d) of the Exchange Act.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order
to effect Short Sales or similar transactions in the future.
25
4.
Other Agreements of the Parties.
4.1.
Furnishing of Information; Public Information. Until no Purchaser owns any Shares, the Company covenants to maintain the
effectiveness of the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to use reasonable best efforts
to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed
by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements
of the Exchange Act.
4.2.
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares in a manner that
would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market such that it
would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the
closing of such subsequent transaction.
4.3.
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the
material terms of the transactions contemplated hereby, and (b) file, within the time required by the Exchange Act, a Current Report
on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission. From and after the issuance of such press
release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered
to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents
(including, without limitation, the Placement Agent). In addition, effective upon the issuance of such press release, the Company acknowledges
and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company,
any of its Subsidiaries, or any of their respective officers, directors, agents (including, without limitation, the Placement Agent),
employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate and
be of no further force or effect. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant
in effecting transactions in securities of the Company. The Company and each Purchaser shall consult with each other in issuing any other
press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press
release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any
Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not
unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly
provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall
not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory
agency or Trading Market, without the prior written consent of such Purchaser, except (a) to the extent required by federal securities
law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required
by law or Trading Market regulations, in which such cases the Company shall (x) obtain prior advice of competent counsel that such disclosure
is required, (y) provide the Purchasers with prior notice of such disclosure permitted under this Section 4.4 and (z) reasonably cooperate
with such Purchasers regarding such disclosure.
26
4.4.
Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of
receiving Shares under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.5.
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other
Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company
reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented in writing
to the receipt of such information and agreed in writing with the Company to keep such information confidential. The Company understands
and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To
the extent that the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates
delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and
agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective
officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers,
directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser
shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously with the delivery of such
notice file such notice with the Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
4.6.
Use of Proceeds. The Company shall use the net proceeds from the sale of the Shares hereunder for general corporate purposes
(which for the avoidance of doubt may include acquisitions, in the Company’s discretion), including working capital. The Company
shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables
in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any shares of Common Stock or
Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
27
4.7.
Indemnification of each Purchaser. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each
Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such
Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from
any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid
in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer
or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the
Company in this Agreement or in the other Transaction Documents, (b) any action instituted against the Purchaser Parties in any capacity
(including a Purchaser Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any stockholder
of the Company who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by
the Transaction Documents. For the avoidance of doubt, the indemnification provided herein is intended to, and shall also cover, direct
claims brought by the Company against the Purchaser Parties; provided, however, that such indemnification shall not cover any loss, claim,
damage or liability to the extent it is finally judicially determined to be attributable to such Purchaser Party’s material breach
of any of the representations, warranties or covenants made by such Purchaser Party in any Transaction Document or any conduct by such
Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct) or (c) in connection
with the Shelf Registration Statement and Prospectus Supplement providing for the sale by the Company of the Shares, the Company will
indemnify each Purchaser Party, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses, as incurred, arising out of or relating
to (i) any untrue or alleged untrue statement of a material fact contained in the Shelf Registration Statement, the Prospectus, the Prospectus
Supplement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein
(in the case of any prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, except
to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Purchaser
Party furnished in writing to the Company by such Purchaser Party expressly for use therein, or (ii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder in connection
therewith. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement,
such Purchaser Party shall promptly notify the Company in writing, and, except with respect to direct claims brought by the Company,
the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser
Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to
assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel to the applicable Purchaser
Party (which may be internal counsel), a material conflict on any material issue between the position of the Company and the position
of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser Party under this Agreement for any settlement by a Purchaser Party
effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed. In addition, if any
Purchaser Party takes actions to collect amounts due under any Transaction Documents or to enforce the provisions of any Transaction
Documents, then the Company shall pay the costs incurred by such Purchaser Party for such collection, enforcement or action, including,
but not limited to, attorneys’ fees and disbursements. The indemnification and other payment obligations required by this Section
4.8 shall be made by periodic payments of the amount thereof during the course of the investigation, defense, collection, enforcement
or action, as and when bills are received or are incurred; provided, however, that if any Purchaser Party is finally judicially determined
not to be entitled to indemnification or payment under this Section 4.8, such Purchaser Party shall promptly reimburse the Company for
any payments that are advanced under this sentence. The indemnity agreements contained herein shall be in addition to any cause of action
or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
28
4.8.
Listing of Common Stock. The Company hereby agrees to use its best efforts to maintain the listing or quotation of the
Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list
or quote all of the Shares on such Trading Market and promptly secure the listing of all of the Shares on such Trading Market. The Company
further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application
all of the Shares, and will take such other action as is necessary to cause all of the Shares to be listed or quoted on such other Trading
Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its
Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under
the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer
through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of
fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.9.
Subsequent Equity Sales.
4.9.1.
In connection with the Placement, without the prior written consent of the investors, the Company will not, for a period of ninety (90)
days after the Release Date (the “Standstill Period”), (a) offer, sell, issue, or otherwise transfer or dispose
of, directly or indirectly, any equity of the Company or any securities convertible into or exercisable or exchangeable for equity of
the Company (other than pursuant to the Company’s existing at-the-market program); (b) file or caused to be filed any registration
statement with the Commission relating to the offering of any equity of the Company or any securities convertible into or exercisable
or exchangeable for equity of the Company (unless such registration statement is filed pursuant to any registration rights agreement
or other registration obligations in effect on the date hereof); or (c) enter into any agreement or announce the intention to effect
any of the actions described in subsections (a) or (b) hereof (all of such matters, the “Standstill Restrictions”).
4.9.2.
Notwithstanding the foregoing, this Section 4.9 shall not apply in respect of an Exempt Issuance.
4.10.
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat
the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Shares or otherwise.
4.11.
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales,
including Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and
ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described
in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction. Notwithstanding the
foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that
(i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities
of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any
securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser
shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company, any of its Subsidiaries,
or any of their respective officers, directors, employees, agents or Affiliates after the issuance of the initial press release as described
in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth
above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase
the Shares covered by this Agreement.
29
4.12.
Blue Sky Filings. The Company shall take such action as the Company shall reasonably determine is necessary in order to
qualify the Shares for sale to the Purchasers at the Closing under applicable securities or “Blue Sky” laws of the states
of the United States, and shall provide evidence of such actions promptly upon request of any Purchaser.
4.13.
Capital Changes. Until the date that is ninety (90) days after the Release Date, the Company shall not undertake a reverse
or forward stock split or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority
in interest of the Shares, based on the initial Subscription Amounts hereunder; provided, however, that nothing herein will prevent the
Company from effecting a reverse stock split of the Common Stock without the consent of the Purchasers to the extent the Company determines
in good faith that such reverse stock split is necessary to regain or maintain compliance with the continued listing requirements of
the Trading Market.
4.14.
Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements
(and any lock-up agreements contemplated in the Lock-Up Agreements) except to extend the term of the lock-up period and shall enforce
the provisions of each Lock-Up Agreement (and any lock-up agreements contemplated in the Lock-Up Agreements) in accordance with its terms,
or if waived by all the Purchasers. If any party to a Lock-Up Agreement (and any lock-up agreements contemplated in the Lock-Up Agreements)
breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific performance of the terms
of such Lock-Up Agreement (and any lock-up agreements contemplated in the Lock-Up Agreements).
4.15.
QEF Election. If a Purchaser so requests in writing for any taxable year of the Company, the Company, after consulting
with its outside accounting firm, shall within fifteen (15) Business Days notify such Purchaser in writing that either (A) neither the
Company nor any of its Subsidiaries was a “passive foreign investment company” as defined in Section 1297 of the Code (“PFIC”)
for such year, or (B) the Company and/or one or more of its Subsidiaries was a PFIC for such year, in which event the Company shall provide
to such Purchaser, upon the reasonable written request of such Purchaser, the information reasonably necessary to allow such Purchaser
to elect to treat each of the Company and any applicable Subsidiaries (if any), respectively, as a “qualified electing fund”
(within the meaning of Section 1295 of the Code for such year, including a “PFIC Annual Information Statement” as described
in Treasury Regulation Section 1.1295-1(g)(1) (or any successor Treasury Regulation).
4.16.
Sufficient Common Stock. As of the date hereof, the Company has available, free of preemptive rights, a sufficient number
of shares of Common Stock for the purpose of enabling the Company to issue Shares pursuant to this Agreement.
30
5.
Miscellaneous.
5.1.
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties,
if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2.
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees
(including, without limitation, any fees required for same-Calendar Day processing of any instruction letter delivered by the Company
and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any
Shares to the Purchasers.
5.3.
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus
Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
5.4.
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication
is delivered via email at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email
at the email address as set forth on the signature pages attached hereto on a Calendar Day that is not a Trading Day or later than 5:30
p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given.
The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any
notice provided pursuant to any Transaction Document constitutes, or contains material, non-public information regarding the Company
or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form
8-K.
31
5.5.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% of the Shares sold hereunder
(or, prior to Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against whom enforcement of any such
waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser
(or multiple Purchasers), the consent of such disproportionately impacted Purchaser (or multiple Purchasers) shall also be required.
No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall
any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed
amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to
the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser.
Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Shares and the Company.
5.6.
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Shares, provided that such transferee agrees in writing to be bound, with respect to the transferred
Shares, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8.
No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties
of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for
the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
32
5.9.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the law of the State of New York without regard to the principles
of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City and County of New York for the adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party
hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing
a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the
obligations of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing
party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such Action or Proceeding.
5.10.
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Shares.
5.11.
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. If any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
5.12.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13.
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights.
33
5.14.
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in
the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.15.
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent
of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.16.
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for
the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein
or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute
the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers
are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents.
Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out
of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an
additional party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review
and negotiation of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel
have chosen to communicate with the Company through the legal counsel to the Placement Agent. The legal counsel of the Placement Agent
does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide all Purchasers with
the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by
any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction
Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between
and among the Purchasers.
5.17.
Saturdays, Sundays, Holidays, etc. If the last or appointed Calendar Day for the taking of any action or the expiration
of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on
the next succeeding Business Day.
5.18.
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity
to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition,
each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the
date of this Agreement.
5.19.
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE
PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
[DYAI
Securities Purchase Agreement Signature Pages Follow]
34
[DYAI
Securities Purchase Agreement – Company Signature Page]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
DYADIC
INTERNATIONAL, INC.
Address
for Notice:
By:
Email:
memalfarb@dyadic.com
Name:
Mark
Emalfarb
Title:
Chief
Executive Officer
35
[DYAI
Securities Purchase Agreement – Investor Signature Page]
IN
WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed by its authorized signatory as of
the date first indicated above.
Name
of Purchaser:
[●]
Signature
of Authorized Signatory of Purchaser:
Name
of Authorized Signatory:
[●]
Title
of Authorized Signatory:
[●]
Address of Authorized Signatory:
[●]
Address
for Notice to Purchaser:
[●]
Address
for Delivery of Shares to Purchaser (if not same as address for notice):
[●]
Subscription
Amount
$[●]
Number
of Shares:
[●]
Employer
Identification Number:
[●]
36
Exhibit
1.37
Form
of Lock-Up Agreement
37
EX-10.2
EX-10.2
Filename: ex10-2.htm · Sequence: 5
Exhibit
10.2
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of August 13, 2026, between Dyadic International,
Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (including
their respective successors and assigns, each a “Purchaser” and collectively, the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended
(the “Securities Act”), and Rule 506(b) promulgated thereunder, the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, certain securities of the Company as
more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
1. Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement,
the following terms have the meanings set forth in this Section 1:
1.1. “Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
1.2. “Action”
shall have the meaning ascribed to such term in Section 3.1.11.
1.3. “Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.4. “Agreement”
shall have the meaning ascribed to such term in the preamble.
1.5. “BHCA”
shall have the meaning ascribed to such term in Section 3.1.43.
1.6. “Board
of Directors” means the board of directors of the Company.
1.7. “Business
Day” means a Calendar Day other than a Saturday, Sunday or any other Calendar Day which is a federal legal holiday in the
United States or any Calendar Day on which the commercial banks in the City of New York are required by law or other governmental action
to close, provided that the commercial banks in the City of New York shall not be deemed to be required to be closed due to a “stay
at home,” “shelter in place,” “non-essential employee” or similar orders or restrictions or the closure
of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including
for wire transfers) of commercial banks in the City of New York generally are open for use by customers on such Calendar Day.
1.8. “Calendar
Day” means each and every day of the week (Sunday, Monday, Tuesday, Wednesday, Thursday, Friday and Saturday).
1.9. “Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
1.10. “Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the second (2nd) Trading
Day following the date hereof.
1.11. “Code”
means the Internal Revenue Code of 1986, as amended.
1.12. “Commission”
means the United States Securities and Exchange Commission.
1.13. “Common
Stock” means the common stock of the Company, $0.001 par value per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
1.14. “Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
1.15. “Common
Warrants” means the warrants to purchase shares of Common Stock delivered to the Purchasers at the Closing in accordance
with Section 2.2.1 hereof, which Common Warrants shall be in the form of Exhibit 1.16.1 attached hereto.
1.16. “Company”
shall have the meaning ascribed to such term in the preamble.
1.17. “Company
Counsel” means with respect to U.S. federal securities law and New York law, White & Case LLP.
1.18. “Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
1.19. “Disclosure
Time” means, (i) if this Agreement is signed on a Calendar Day that is not a Trading Day or after 9:00 a.m. (New York City
time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following
the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between
midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on
the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
1.20. “Disqualification
Event” shall have the meaning ascribed to such term in Section 3.1.45.
1.21. “Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1.20.
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1.22. “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
1.23. “Exempt
Issuance” means (i) any conventional bank loans that are not convertible into, or exercisable or exchangeable for, shares
of Common Stock or Common Stock Equivalents and do not involve any issuance of any shares of Common Stock or Common Stock Equivalents
or other security of the Company in connection therewith; (ii) shares of Common Stock or options issued to employees, officers or directors
of the Company pursuant to the Company’s equity incentive plans or pursuant to the compensation agreements previously authorized
by the Board of Directors; (iii) securities issued upon the exercise or exchange of or conversion of any Securities issued hereunder
and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date
of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such
securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock
splits or combinations) or to extend the term of such securities; and (iv) securities issued pursuant to acquisitions or strategic transactions
(whether by merger, consolidation, purchase of equity, purchase of assets, reorganization or otherwise) approved by a majority of the
disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in
Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during
the ninety (90) days following the Release Date, and provided that any such issuance shall only be to a Person (or to the equityholders
of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities.
1.24. “FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
1.25. “FDA”
shall have the meaning ascribed to such term in Section 3.1.48.
1.26. “FDCA”
shall have the meaning ascribed to such term in Section 3.1.48.
1.27. “Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1.43.
1.28. “GAAP”
shall have the meaning ascribed to such term in Section 3.1.9.
1.29.
[Reserved].
1.30. “Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1.17.
1.31. “Issuer
Covered Person” shall have the meaning ascribed to such term in Section 3.1.45.
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1.32. “IT
Systems and Data” shall have the meaning ascribed to such term in Section 3.1.49.
1.33. “Legend
Removal Date” shall have the meaning ascribed to such term in Section 4.1.3.
1.34. “Liens”
means a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
1.35. “Lock-Up
Agreement” means each Lock-Up Agreement, dated as of the date hereof, by and between the Company and each of the directors,
executive officers, employees and stockholders holding at least ten percent (10%) of the outstanding shares of Common Stock, in the form
of Exhibit 1.37 attached hereto.
1.36. “Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1.2.
1.37. “Material
Permits” shall have the meaning ascribed to such term in Section 3.1.15.
1.38. “Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3.1.44.
1.39. “OFAC”
shall have the meaning ascribed to such term in Section 3.1.41.
1.40. “Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
1.41. “PFIC”
shall have the meaning ascribed to such term in Section 4.18.
1.42. “Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1.48.
1.43. “Placement
Agent” means Aegis Capital Corp.
1.44. “Placement
Agent Agreement” means the placement agent agreement, dated on or about the date hereof, between the Company and the Placement
Agent relating to the purchase and sale of the Securities under this Agreement and the purchase and sale of certain other securities
pursuant to the terms of such Placement Agent Agreement.
1.45. “Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
1.46. “Public
Information Failure” shall have the meaning ascribed to such term in Section 4.2.2.
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1.47. “Purchaser”
shall have the meaning ascribed to such term in the preamble.
1.48. “Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
1.49. “Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the date hereof, by and among the Company and the
Purchasers, in the form of Exhibit 1.55 attached hereto.
1.50. “Release
Date” means the earlier of (i) the Resale Effective Date registering all of the Warrant Shares or (ii) the date that the
Warrant Shares can be sold, assigned or transferred without restriction or limitation pursuant to Rule 144 promulgated under the Securities
Act (or a successor rule thereto).
1.51. “Required
Approvals” shall have the meaning ascribed to such term in Section 3.1.5.
1.52. “Resale
Effective Date” means the earliest of the date that (a) one or more Resale Registration Statements registering for resale
all Warrant Shares have been declared effective by the Commission, (b) all of the Warrant Shares have been sold pursuant to Rule 144
or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information required
under Rule 144 and without volume or manner-of-sale restrictions, (c) following the one year anniversary of the Closing Date provided
that the applicable holder of Warrant Shares is not an Affiliate of the Company, or (d) all of the Warrant Shares may be sold pursuant
to an exemption from registration under Section 4(a)(1) of the Securities Act without volume or manner-of-sale restrictions and Company
Counsel has delivered to such holders a standing written unqualified opinion that resales may then be made by such holders of the Warrant
Shares pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders.
1.53. “Resale
Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement
and covering the resale by the Purchasers of the Warrant Shares.
1.54. “Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
1.55. “Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
1.56. “SEC
Reports” shall have the meaning ascribed to such term in Section 3.1.9.
5
1.57. “Securities”
means the Common Warrants and the Warrant Shares purchased or issuable pursuant to this Agreement.
1.58. “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.59. “Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not
be deemed to include locating and/or borrowing shares of Common Stock).
1.60. “Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for the Securities purchased hereunder at the Warrant
Purchase Price as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds.
1.61. “Subsidiary”
means any subsidiary of the Company as set forth in Schedule 3.1.1 and shall, where applicable, also include any direct or indirect subsidiary
of the Company formed or acquired after the date hereof.
1.62.
“Trading Day” means a Calendar Day on which the principal Trading Market is open for trading.
1.63. “Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the
date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York
Stock Exchange, the OTCQB, OTCQX, Pink Open Market (or any successors to any of the foregoing).
1.64. “Transaction
Documents” means this Agreement, the Securities, the Registration Rights Agreement, the Lock-Up Agreements and all exhibits
and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
1.65. “Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing
address of 1 State Street, 30th Floor, New York, NY 10004, and any successor transfer agent of the Company.
1.66. “VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the OTC Pink (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock so reported,
or (d) in all other cases, the fair market value of the Common Stock as determined by an independent appraiser selected in good faith
by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
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1.67.
“Warrant Purchase Price” equals $0.005.
1.68.
“Warrant Shares” means the shares of Common Stock underlying the Common Warrants.
2. Purchase
and Sale.
2.1. Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery
of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase,
Common Warrants to purchase 3,625,000 shares of Common Stock. Each Purchaser shall make such Purchaser’s Subscription Amount as
set forth on the signature page hereto executed by such Purchaser available to be delivered to the Company (or its designee) by wire
transfer of immediately available funds, and the Company shall deliver to each Purchaser its respective Common Warrants, as determined
pursuant to Section 2.2.1, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2.2 deliverable at
the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.3.1 and 2.3.2, the Closing shall occur at the
offices of counsel to the Placement Agent or such other location (or remotely by electronic means) as the parties shall mutually agree.
2.2. Deliveries.
2.2.1. The
Company shall deliver or cause to be delivered to each Purchaser or the Placement Agent, as appropriate, the following at the times stated:
2.2.1.1 on
the date hereof:
2.2.1.1.1. this
Agreement duly executed by the Company.
2.2.1.1.2. the
Placement Agent Agreement, duly executed by the Company.
2.2.1.1.3. a
certificate executed by the Chief Financial Officer of the Company in customary form reasonably satisfactory to the Placement Agent and
its counsel.
2.2.1.1.4. the
Lock-Up Agreements.
2.2.1.1.5. the
Registration Rights Agreement duly executed by the Company.
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2.2.1.2 on
or prior to the Closing Date:
2.2.1.2.1. a
legal opinion of Company Counsel, addressed to the Placement Agent and the Purchasers, in form and substance reasonably acceptable to
the Placement Agent and the Purchasers.
2.2.1.2.2. a
copy of the Common Warrants sold to such Purchaser, registered in the name of such Purchaser.
2.2.1.2.3. the
Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer.
2.2.1.2.4. a
duly executed and delivered Officers’ Certificate, in customary form reasonably satisfactory to the Placement Agent and its counsel.
2.2.1.2.5. the
Common Warrants registered in the name of such Purchaser to purchase the number of shares of Common Stock as set forth on such Purchaser’s
signature page hereto.
2.2.2. Each
Purchaser, and the Placement Agent, as applicable, shall deliver or cause to be delivered to the Company the following at the times stated:
2.2.2.1 on
the date hereof:
2.2.2.1.1. this
Agreement duly executed by such Purchaser.
2.2.2.1.2. the
Registration Rights Agreement duly executed by such Purchaser.
2.2.2.2 on
or prior to the Closing Date:
2.2.2.2.1. such
Purchaser’s Subscription Amount shall be made available by wire transfer of immediately available funds to the Company or its designee.
2.2.2.2.2. the
Placement Agent Agreement, duly executed by the Placement Agent.
2.3. Closing
Conditions.
2.3.1. The
obligations of the Company hereunder in connection with the Closing are subject to each of the following conditions being met:
2.3.1.1 the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as
of a specific date therein in which case they shall be accurate as of such date).
8
2.3.1.2 all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed.
2.3.1.3 the
delivery by each Purchaser of the items set forth in Section 2.2.2 of this Agreement.
2.3.2. The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to each of the following conditions being
met:
2.3.2.1 the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate as of such date).
2.3.2.2 all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed.
2.3.2.3 the
delivery by the Company of the items set forth in Section 2.2.1 of this Agreement.
2.3.2.4 there
shall have been no Material Adverse Effect with respect to the Company since the date hereof.
2.3.2.5 from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
3. Representations
and Warranties.
3.1. Representations
and Warranties of the Company. The Company hereby makes the following representations and warranties to each Purchaser:
3.1.1. Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1.1. The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them
in the Transaction Documents shall be disregarded.
9
3.1.2. Organization
and Qualification. Each of the Company and its operating Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would
not, individually or in the aggregate, reasonably be expected to result in: (i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s
ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
a “Material Adverse Effect”; provided, however, that “Material Adverse Effect” shall
not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) the announcement,
pendency or completion of the transactions contemplated by the Transaction Documents or (ii) any action required or permitted by the
Transaction Documents or any action taken (or omitted to be taken) with the written consent of or at the written request of Purchaser).
As to all Company and Subsidiary power, authority and qualification, no Proceeding has been instituted in any such jurisdiction revoking,
limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
3.1.3. Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other
than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or
upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
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3.1.4. No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
3.1.5. Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person
in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required
pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Resale Registration Statement pursuant to the Registration
Rights Agreement, (iii) the notice and/or application(s) to each applicable Trading Market for the listing of the Warrant Shares for
trading thereon in the time and manner required thereby, (iv) the filing of Form D with the Commission with respect to the Securities
and such other filings as are required to be made under applicable state securities laws (the “Required Approvals”).
3.1.6. Issuance
of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable (which means that no further sums are required to be paid by
the holders thereof in connection with the issue thereof), free and clear of all Liens imposed by the Company other than restrictions
on transfer provided for in the Transaction Documents and applicable law. The Warrant Shares, when issued in accordance with the terms
of the Transaction Documents, will be validly issued, fully paid and nonassessable (which means that no further sums are required to
be paid by the holders thereof in connection with the issue thereof), free and clear of all Liens imposed by the Company other than restrictions
on transfer provided for in the Transaction Documents and applicable law. As of the date hereof, the Company has reserved and the Company
shall continue to reserve and keep available at all times, free of preemptive rights, the maximum number of Warrant Shares pursuant to
any exercise of the Common Warrants, without regard to any limitations upon exercise of the Common Warrants (as adjusted for forward
and reverse stock splits, recapitalizations, stock dividends and the like after the date hereof).
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3.1.7. [RESERVED]
3.1.8. Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1.8, which Schedule 3.1.8 shall also include the
number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. Other than as
stated in Schedule 3.1.8, the Company has not issued any capital stock since its most recently filed periodic report under the Exchange
Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares
of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise
of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has
any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated
by the Transaction Documents. Except as set forth in Schedule 3.1.8, or pursuant to this Agreement, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common
Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary
is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The
issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities
to any Person (other than the Purchasers upon exercise of the Common Warrants). Except as set forth in Schedule 3.1.8, there are no outstanding
securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset
price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. Except as set forth in Schedule
3.1.8, there are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound
to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock”
plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized,
validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of
such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No
further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities.
There are no stockholders’ agreements, voting agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
12
3.1.9. SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to
be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein
as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed
any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer
subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at
the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in
such financial statements or the notes thereto, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
3.1.10. Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as set forth on Schedule 3.1.10, (i) there has been no event, occurrence or development that has had or
that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent
or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice
and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings
made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment
of information. Except for the issuance of the Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence
or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or
their respective businesses, properties, operations, assets or financial condition that would be required to be disclosed by the Company
under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least
one (1) Trading Day prior to the date that this representation is made.
13
3.1.11. Litigation.
Except as set forth in Schedule 3.1.11, there is no material action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth on Schedule 3.1.11, (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or (ii) would, if there were an unfavorable decision, have
or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor, to the knowledge of the
Company, any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there
is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer
of the Company, except in the ordinary course of business that would not have a Material Adverse Effect. The Commission has not issued
any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under
the Exchange Act or the Securities Act.
3.1.12. Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the
Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
3.1.13. Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree, or order of any court, arbitrator or other governmental
authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety,
product quality and safety and employment and labor matters, except in each case as would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
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3.1.14. Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution
or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata),
including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
3.1.15. Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any written notice of proceedings relating to the revocation
or modification of any Material Permit, except where such revocation or modification would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
3.1.16. Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to, or have valid and marketable rights
to lease or otherwise use, all real property and all personal property that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens that do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made in accordance with GAAP, and the payment of which is
neither delinquent nor subject to penalties. Neither the Company nor any of its Subsidiaries has received any written notice of any claim
of any sort that has been asserted by anyone adverse to the rights of the Company or its Subsidiaries under any of the leases or subleases
or licenses or with respect to the properties mentioned above, or affecting or questioning the rights of the Company or any Subsidiary
to the continued possession or use of the leased or subleased or licensed premises or the properties mentioned above, other than such
claims which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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3.1.17. Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and
similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have would reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). None of, and neither the Company nor any Subsidiary has received written notice that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years
after the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial
statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property
Rights violate or infringe upon the rights of any Person, except as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is
no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to
do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
3.1.18. Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage in amount deemed prudent by the Company. Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
3.1.19. Transactions
with Affiliates and Employees. Except as set forth on Schedule 3.1.19, during the past three fiscal years and the subsequent
interim period through the date of this Agreement, none of the officers or directors of the Company or any Subsidiary and, to the knowledge
of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of
money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge
of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director,
trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for
services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock
option agreements under any stock option plan of the Company.
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3.1.20. Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. Except as set forth on
Schedule 3.1.20, the Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have
evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period
covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”).
The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about
the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the
Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial
reporting of the Company and its Subsidiaries.
3.1.21. Certain
Fees. Except for the fees and expenses of the Placement Agent, no brokerage or finder’s fees or commissions are or will
be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation
with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this
Section 3.1.21 that may be due in connection with the transactions contemplated by the Transaction Documents.
3.1.22. Private
Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers as contemplated hereby.
The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.
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3.1.23. Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not
be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The
Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
3.1.24. Registration
Rights. Except as disclosed on Schedule 3.1.24 and other than to each of the Purchasers pursuant to the Registration Rights Agreement,
and except as have been validly complied with or waived with respect to the transactions contemplated hereby, no Person has any right
to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
3.1.25. Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such
registration. Except as disclosed in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice
from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in
the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently
eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is
current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such
electronic transfer.
3.1.26. Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s
issuance of the Securities and the Purchasers’ ownership of the Securities.
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3.1.27. Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchasers
will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by
or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions
contemplated hereby, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made and when made, not misleading. The Company
acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3.2 hereof.
3.1.28. No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities
to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require the registration of any
such securities under the Securities Act, or (ii) any applicable stockholder approval provisions of any Trading Market on which any of
the securities of the Company are listed or designated.
3.1.29. [RESERVED]
3.1.30. Tax
Status. Except as disclosed in Schedule 3.1.30, the Company and its Subsidiaries each (i) has made or filed all material United
States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction
to which it is subject, (ii) has paid all material taxes and other governmental assessments and charges that are material in amount,
shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate
for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply, except
in each case where the failure to so file, pay or set aside would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company or of any Subsidiary know of no basis for any such claim.
3.1.31. No
General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchasers and
certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
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3.1.32. Foreign
Corrupt Practices Act. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent
or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of
which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of FCPA.
3.1.33. Accountants.
The Company’s accounting firm is Crowe LLP. To the knowledge and belief of the Company, such accounting firm (i) is a registered
public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to
be included in the Company’s Annual Report for the now current fiscal year.
3.1.34. No
Disagreements with Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably anticipated
by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company
is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any
of its obligations under any of the Transaction Documents.
3.1.35. Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting
solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or
any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby
is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
3.1.36. Acknowledgment
Regarding Purchaser’s Trading Activity. Notwithstanding anything in this Agreement or elsewhere herein to the contrary
(except for Sections 3.2.7 and 4.12 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been
asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the
Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term, (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities, (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage
in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the
periods that the value of the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging activities
(if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging
activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any
of the Transaction Documents.
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3.1.37. Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any
action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s placement agent in connection
with the placement of the Securities.
3.1.38. Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Purchasers shall be deemed
a representation and warranty by the Company to the Purchasers as to the matters covered thereby.
3.1.39. D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently completed by
each of the Company’s directors and officers and beneficial owner of 5% or more of the shares of Common Stock or Common Stock Equivalents
is true and correct in all respects and the Company has not become aware of any information which would cause the information disclosed
in such questionnaires become inaccurate and incorrect.
3.1.40. Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan, if any, was granted (i) in
accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market
value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted
under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no
Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with,
the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results
or prospects.
3.1.41. Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer,
agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
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3.1.42. U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the
meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
3.1.43. Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act
of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System
(the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or
more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company
nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that
is subject to the BHCA and to regulation by the Federal Reserve.
3.1.44. Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
3.1.45. No
Disqualification Events. With respect to the Securities to be offered and sold hereunder in reliance on Rule 506 under the Securities
Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company
participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities,
calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with
the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer
Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to
(viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by
Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification
Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the
Purchasers a copy of any disclosures provided thereunder.
3.1.46. Other
Covered Persons. Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered Person)
that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any
Securities.
3.1.47. Notice
of Disqualification Events. The Company will notify the Purchasers and the Placement Agent in writing, prior to the Closing Date
of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become
a Disqualification Event relating to any Issuer Covered Person.
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3.1.48. FDA.
The preclinical studies and tests and clinical trials conducted by or on behalf of the Company that are described in the SEC Reports
(the “Company Studies and Trials”) were and, if still pending, are being, conducted in all material respects
in accordance with applicable laws, including, without limitation, the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301
et seq.) and the rules and regulations promulgated thereunder (the “FDCA”); the descriptions of the results
of the Company Studies and Trials contained in the SEC Reports are accurate in all material respects; the Company has no knowledge of
any other studies or trials not described in the SEC Reports, the results of which are inconsistent with or reasonably call into question
the results described or referred to in the SEC Reports when viewed in the context in which such results are described and the stage
of development; and the Company has not received any written notices, correspondence or other written communication from the U.S. Food
and Drug Administration (the “FDA”) or any foreign, state or local governmental body exercising comparable
authority requiring the termination, suspension or material modification of any Company Studies and Trials, where such termination, suspension
or material modification would reasonably be expected to have a Material Adverse Effect and, to the Company’s knowledge, there
are no reasonable grounds for the same. To the Company’s knowledge, none of the Company Studies and Trials involved any investigator
who has been disqualified as a clinical investigator by the FDA. To the Company’s knowledge, the manufacturing facilities and operations
of its suppliers are operated in compliance in all material respects with all applicable statutes, rules, regulations and policies of
the FDA and comparable regulatory agencies outside of the United States to which the Company is subject.
3.1.49. Cybersecurity.
(i) (a) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s
information technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees,
suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT
Systems and Data”) and (b) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event
or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii)
the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and
regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except, in the case of clauses (i) and (ii) herein, as would not, individually or in the aggregate, have a Material
Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain
and protect its material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems
and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry
standards and practices.
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3.1.50. Separate
and Independent Purchasers. The Company further (a) represents and warrants and acknowledges and agrees that, to the knowledge
of the Company (i) each Purchaser is participating in the offering of Securities contemplated hereby separately and independently of
each other Purchaser, (ii) no Purchaser has communicated directly with any other Purchaser, (iii) all communications by each Purchaser
concerning the Transaction Documents and the transactions contemplated thereby and any matters related thereto were solely conducted
separately and independently with the Placement Agent without the involvement or inclusion of any other Purchaser and (iv) the Purchasers
do not constitute a “group” as that term is used under Section 13(d) of the Exchange Act, and (b) covenants and agrees not
to take a position to the contrary to the foregoing.
3.2. Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of
the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall
be accurate as of such date):
3.2.1. Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the law of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the legal, valid and binding obligation of such Purchaser, enforceable against it in accordance with its terms, except (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
3.2.2. Own
Account. Such Purchaser understands that the Securities are “restricted securities” as defined in Rule 144 and have
not been registered under the Securities Act or any applicable state securities law and is acquiring the Securities as principal for
its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities
Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities
Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute
or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law (this representation
and warranty shall not limit such Purchaser’s right to sell the Securities pursuant to a registration statement or otherwise in
compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course
of its business.
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3.2.3. Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises any Common Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer” as defined
in Rule 144A(a)(1) under the Securities Act. Such Purchaser hereby represents that neither such Purchaser nor any of its Rule 506(d)
Related Parties (as defined below) is a “bad actor” within the meaning of Rule 506(d) promulgated under the Securities Act.
For purposes of this Agreement, “Rule 506(d) Related Party” shall mean a person or entity covered by the “Bad Actor
disqualification” provision of Rule 506(d) of the Securities Act.
3.2.4. Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in
the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an
investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
3.2.5. General
Solicitation. Such Purchaser is not, to such Purchaser’s knowledge, purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.
3.2.6. Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all
exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the
Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither
the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect
to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be and has not been provided to it (other than with respect
to the transactions contemplated by the Transaction Documents). In connection with the issuance of the Securities to such Purchaser,
neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
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3.2.7. Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor
has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases
or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first
received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms
of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors,
partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures
made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing,
for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect
to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
3.2.8. No
Intent to Effect a Change of Control. Such Purchaser has no present intent to effect a “change of control” of the
Company as such term is interpreted and understood under the rules promulgated pursuant to Section 13(d) of the Exchange Act.
3.2.9. No
Integration. Such Purchaser has not taken, and will not take, any action that would cause the offer or sale of the Securities
to such Purchaser to be integrated with any other offering of securities by the Company for purposes of (i) the Securities Act, in a
manner that would require the registration under the Securities Act of the sale of the Securities, or (ii) any applicable stockholder
approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order
to effect Short Sales or similar transactions in the future.
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4. Other
Agreements of the Parties.
4.1. Transfer
Restrictions.
4.1.1. The
Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection
with a pledge as contemplated in Section 4.1.2, the Company may require the transferor thereof to provide to the Company an opinion of
counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the
Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and
the Registration Rights Agreement and shall have the rights and obligations of a Purchaser under this Agreement and the Registration
Rights Agreement.
4.1.2. Each
Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities in substantially
the following form:
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY
SUCH SECURITIES.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered
broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor”
as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer
pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company
and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no
notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable
documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities,
including, if the Securities are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of
any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act
to appropriately amend the list of Selling Stockholders (as defined in the Registration Rights Agreement) thereunder.
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4.1.3. Certificates
evidencing the Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1.2 hereof) (i) while a registration
statement (including the Resale Registration Statement) covering the resale of such security is effective under the Securities Act, (ii)
following any sale of such Warrant Shares pursuant to Rule 144 (assuming cashless exercise of the Common Warrants), (iii) if such Warrant
Shares are eligible for sale or may be sold under Rule 144 (assuming cashless exercise of the Common Warrants) without volume or manner-of-sale
restrictions, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Transfer
Agent or the Purchaser if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser,
respectively. If all or any portion of a Common Warrant is exercised at a time when there is an effective registration statement to cover
the resale of the Warrant Shares, if the Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current
public information required under Rule 144 (assuming cashless exercise of the Common Warrants), or if the Warrant Shares may be sold
under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144
as to such Warrant Shares or if such legend is not otherwise required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the Commission), then such Warrant Shares shall be issued free of
all legends. The Company agrees that following the Resale Effective Date or at such time as such legend is no longer required under this
Section 4.1.3, it will, no later than the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard
Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate (or
book-entry notation) representing Warrant Shares issued with a restrictive legend (such date, the “Legend Removal Date”),
at the Company’s sole cost, deliver or cause to be delivered to such Purchaser a certificate representing such Warrant Shares that
is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer
Agent that enlarge the restrictions on transfer set forth in this Section 4. The Company agrees that no medallion guarantee (or other
type of guarantee or notarization) shall be required to remove a legend from any Warrant Shares. Certificates for Securities subject
to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s
prime broker with the Depository Trust Company System as directed by such Purchaser. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of delivery of a certificate (or book-entry notation) representing Warrant Shares issued
with a restrictive legend. In addition to such Purchaser’s other available remedies, the Company shall pay to the Purchaser, in
cash, as partial liquidated damages and not as a penalty, one percent (1%) of the aggregate exercise price of the Warrant Shares for
which the removal of the legend is sought for each full month that said opinion is not delivered after the Legend Removal Date until
such certificate is delivered without a legend.
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4.1.4. Each
Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any Securities
pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or
an exemption therefrom, and that if Securities are sold pursuant to a Resale Registration Statement, they will be sold in compliance
with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing
Securities as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.
4.2. Furnishing
of Information; Public Information.
4.2.1. Until
no Purchaser owns any Securities and the Common Warrants have terminated, the Company covenants to maintain the effectiveness of the
registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to use reasonable best efforts to timely file (or
obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after
the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
4.2.2. At
any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the Securities
(assuming cashless exercise for the Common Warrants) may be sold without the requirement for the Company to be in compliance with Rule
144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy
the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes
such an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public
Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a
Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to
sell the Securities, an amount in cash equal to one percent (1.0%) of the aggregate exercise price of such Purchaser’s Warrants
on the Calendar Day of a Public Information Failure and on every sixtieth (60th) Calendar Day (prorated for periods totaling less than
thirty Calendar Days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such
public information is no longer required for the Purchasers to transfer the Warrant Shares pursuant to Rule 144. The payments to which
a Purchaser shall be entitled pursuant to this Section 4.2.2 are referred to herein as “Public Information Failure Payments.”
Public Information Failure Payments shall be paid on the earlier of (i) the last Calendar Day of the calendar month during which such
Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the
Public Information Failure Payments is cured. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the
Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including,
without limitation, a decree of specific performance and/or injunctive relief.
29
4.3. Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the
registration under the Securities Act of the sale of the Securities or that would be integrated with the offer or sale of the Securities
for purposes of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing
of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
4.4. Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms
of the transactions contemplated hereby, and (b) file, within the time required by the Exchange Act, a Current Report on Form 8-K, including
the Transaction Documents as exhibits thereto, with the Commission. From and after the issuance of such press release, the Company represents
to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the
Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents (including, without limitation,
the Placement Agent). In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and
all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries,
or any of their respective officers, directors, agents (including, without limitation, the Placement Agent), employees or Affiliates
on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate and be of no further force or
effect. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect
to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make
any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the
prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or
delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with
prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name
of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market,
without the prior written consent of such Purchaser, except (a) to the extent required by federal securities law in connection with (i)
any Resale Registration Statement contemplated by this Agreement or the Registration Rights Agreement and (ii) the filing of final Transaction
Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which such cases
the Company shall (x) obtain prior advice of competent counsel that such disclosure is required, (y) provide the Purchasers with prior
notice of such disclosure permitted under this Section 4.4 and (z) reasonably cooperate with such Purchasers regarding such disclosure.
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4.5. Stockholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any
Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company,
or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under
the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6. Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its
behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto such Purchaser shall have consented in writing to the receipt of such
information and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company,
any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall
not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents,
employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees
or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to
applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public
information regarding the Company or any Subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice
with the Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying
on the foregoing covenant in effecting transactions in securities of the Company.
4.7. Use
of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for general corporate purposes
(which for the avoidance of doubt may include acquisitions, in the Company’s discretion), including working capital. The Company
shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables
in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any shares of Common Stock or
Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
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4.8. Indemnification
of each Purchaser. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its
directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role
of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents,
members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from
any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid
in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer
or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the
Company in this Agreement or in the other Transaction Documents, (b) any action instituted against the Purchaser Parties in any capacity
(including a Purchaser Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any stockholder
of the Company who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by
the Transaction Documents. For the avoidance of doubt, the indemnification provided herein is intended to, and shall also cover, direct
claims brought by the Company against the Purchaser Parties; provided, however, that such indemnification shall not cover any loss, claim,
damage or liability to the extent it is finally judicially determined to be attributable to such Purchaser Party’s material breach
of any of the representations, warranties or covenants made by such Purchaser Party in any Transaction Document or any conduct by such
Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct) or (c) in connection
with any Resale Registration Statement of the Company providing for the resale by the Purchasers of the Shares or Warrant Shares issued
and issuable upon exercise of the Common Warrants, the Company will indemnify each Purchaser Party, to the fullest extent permitted by
applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’
fees) and expenses, as incurred, arising out of or relating to (i) any untrue or alleged untrue statement of a material fact contained
in such Resale Registration Statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any prospectus or supplement thereto, in the light of the circumstances under which they
were made) not misleading, except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon
information regarding such Purchaser Party furnished in writing to the Company by such Purchaser Party expressly for use therein, or
(ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule
or regulation thereunder in connection therewith). If any action shall be brought against any Purchaser Party in respect of which indemnity
may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and, except with respect
to direct claims brought by the Company, the Company shall have the right to assume the defense thereof with counsel of its own choosing
reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action
and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except
to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed
after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion
of counsel to the applicable Purchaser Party (which may be internal counsel), a material conflict on any material issue between the position
of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses
of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement for any settlement
by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed.
In addition, if any Purchaser Party takes actions to collect amounts due under any Transaction Documents or to enforce the provisions
of any Transaction Documents, then the Company shall pay the costs incurred by such Purchaser Party for such collection, enforcement
or action, including, but not limited to, attorneys’ fees and disbursements. The indemnification and other payment obligations
required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation, defense,
collection, enforcement or action, as and when bills are received or are incurred; provided, however, that if any Purchaser Party is
finally judicially determined not to be entitled to indemnification or payment under this Section 4.8, such Purchaser Party shall promptly
reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained herein shall be in addition
to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject
to pursuant to law.
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4.9. Listing
of Common Stock. Upon the filing of the Resale Registration Statement, the Company hereby agrees to use its best efforts to maintain
the listing or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing,
the Company shall apply to list or quote all of the Warrant Shares on such Trading Market and promptly secure the listing of all of the
Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have its Common Stock traded on any other
Trading Market, it will then include in such application all of the Warrant Shares, and will take such other action as is necessary to
cause all of the Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take
all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects
with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees
to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing
corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing
corporation in connection with such electronic transfer.
4.10. Subsequent
Equity Sales.
4.10.1. In
connection with the Placement, without the prior written consent of the investors, the Company will not, for a period of ninety (90)
days after the Release Date (the “Standstill Period”), (a) offer, sell, issue, or otherwise transfer or dispose
of, directly or indirectly, any equity of the Company or any securities convertible into or exercisable or exchangeable for equity of
the Company (other than pursuant to the Company’s existing at-the-market program); (b) file or caused to be filed any registration
statement with the Commission relating to the offering of any equity of the Company or any securities convertible into or exercisable
or exchangeable for equity of the Company (unless such registration statement is filed pursuant to any registration rights agreement
or other registration obligations in effect on the date hereof (including the Registration Rights Agreement); or (c) enter into any agreement
or announce the intention to effect any of the actions described in subsections (a) or (b) hereof (all of such matters, the “Standstill
Restrictions”).
4.10.2. From
the date hereof until the twelve month anniversary of the Release Date, the Company shall be prohibited from effecting or entering into
an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination
of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which
the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include
the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price
that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial
issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some
future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly
or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction
under, any agreement, including, but not limited to, an equity line of credit (except for any sales pursuant to an “at-the-market”
offering beginning on the date that is ninety (90) days after the Release Date and provided that any such sales are made at a per share
sales price of $0.80 or higher (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar
transactions of the Common Stock that occur after the date of this Agreement)), whereby the Company may issue securities at a future
determined price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which
remedy shall be in addition to any right to collect damages.
4.10.3. Notwithstanding
the foregoing, this Section 4.10 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be
an Exempt Issuance.
4.11. Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to
any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat
the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Securities or otherwise.
33
4.12. Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither
it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short
Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such
time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction. Notwithstanding the foregoing and notwithstanding
anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation,
warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the
transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section
4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance
with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty
not to trade in the securities of the Company to the Company, any of its Subsidiaries, or any of their respective officers, directors,
employees, agents or Affiliates after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.
4.13. Form
D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D
and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the Purchasers at the Closing under
applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly
upon request of any Purchaser.
4.14. Capital
Changes. Until the date that is ninety (90) days after the Release Date, the Company shall not undertake a reverse or forward
stock split or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority in interest
of the Common Warrants, based on the initial Subscription Amounts hereunder; provided, however, that nothing herein will prevent the
Company from effecting a reverse stock split of the Common Stock without the consent of the Purchasers to the extent the Company determines
in good faith that such reverse stock split is necessary to regain or maintain compliance with the continued listing requirements of
the Trading Market.
34
4.15. Acknowledgment
of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding shares of
Common Stock, which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations
under the Transaction Documents, including, without limitation, its obligation to issue the Warrant Shares pursuant to the Transaction
Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the
effect of any such dilution or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance
may have on the ownership of the other stockholders of the Company.
4.16. Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements (and any lock-up
agreements contemplated in the Lock-Up Agreements) except to extend the term of the lock-up period and shall enforce the provisions of
each Lock-Up Agreement (and any lock-up agreements contemplated in the Lock-Up Agreements) in accordance with its terms, or if waived
by all the Purchasers. If any party to a Lock-Up Agreement (and any lock-up agreements contemplated in the Lock-Up Agreements) breaches
any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific performance of the terms of such
Lock-Up Agreement (and any lock-up agreements contemplated in the Lock-Up Agreements).
4.17. Registration
Rights Agreement. On the date hereof, the Company shall enter into the Registration Rights Agreement and shall not amend, modify,
waive or terminate any provision of the Registration Rights Agreement, except pursuant to the terms of the Registration Rights Agreement.
4.18. QEF
Election. If a Purchaser so requests in writing for any taxable year of the Company, the Company, after consulting with its outside
accounting firm, shall within fifteen (15) Business Days notify such Purchaser in writing that either (A) neither the Company nor any
of its Subsidiaries was a “passive foreign investment company” as defined in Section 1297 of the Code (“PFIC”)
for such year, or (B) the Company and/or one or more of its Subsidiaries was a PFIC for such year, in which event the Company shall provide
to such Purchaser, upon the reasonable written request of such Purchaser, the information reasonably necessary to allow such Purchaser
to elect to treat each of the Company and any applicable Subsidiaries (if any), respectively, as a “qualified electing fund”
(within the meaning of Section 1295 of the Code for such year, including a “PFIC Annual Information Statement” as described
in Treasury Regulation Section 1.1295-1(g)(1) (or any successor Treasury Regulation).
4.19. Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available
at all times, free of preemptive rights, the maximum number of Warrant Shares pursuant to any exercise of the Common Warrants, without
regard to any limitations upon exercise of the Common Warrants (as adjusted for forward and reverse stock splits, recapitalizations,
stock dividends and the like after the date hereof). If the Company does not have a sufficient number of Common Stock available to honor
the exercise of Common Warrants, the Company shall allocate the available number of Warrant Shares on a pro rata basis among all Purchasers
exercising Common Warrants, until such time as the Company has a sufficient number of authorized shares of Common Stock to issue all
Warrant Shares in full.
35
4.20. Exercise
Procedures. The form of Notice of Exercise included in the Common Warrants set forth the totality of the procedures required
of the Purchasers in order to exercise the Common Warrants. No additional legal opinion, other information or instructions shall be required
of the Purchasers to exercise their Common Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required
in order to exercise the Common Warrants. The Company shall honor exercises of the Common Warrants and shall deliver Warrant Shares in
accordance with the terms, conditions and time periods set forth in the Transaction Documents.
5. Miscellaneous.
5.1. Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been
consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such termination
will affect the right of any party to sue for any breach by any other party (or parties).
5.2. Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-Calendar Day processing of any instruction letter delivered by the Company and any exercise notice
delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3. Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the
parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4. Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email
at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day,
(b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email at the email address
as set forth on the signature pages attached hereto on a Calendar Day that is not a Trading Day or later than 5:30 p.m. (New York City
time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices
and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any
Transaction Document constitutes, or contains material, non-public information regarding the Company or any of the Subsidiaries, the
Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
36
5.5. Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% of the Common Warrants sold hereunder (or,
prior to Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against whom enforcement of any such waived
provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or
multiple Purchasers), the consent of such disproportionately impacted Purchaser (or multiple Purchasers) shall also be required. No waiver
of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in
the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay
or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment
or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable
rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment
effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.
5.6. Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser
(other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns
or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities,
by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8. No
Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of
the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
37
5.9. Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be
governed by and construed and enforced in accordance with the law of the State of New York without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City and County of New York for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any
such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to
it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall
commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the
Company under Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its
reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action
or Proceeding.
5.10. Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11. Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. If any signature is delivered by e-mail delivery of a “.pdf” format data
file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed)
with the same force and effect as if such “.pdf” signature page were an original thereof.
5.12. Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
38
5.13. Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of)
any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document
and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of a rescission
of an exercise of a Common Warrant, the applicable Purchaser shall be required to return any Warrant Shares subject to any such rescinded
exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such Warrant Shares
and the restoration of such Purchaser’s right to acquire such Warrant Shares pursuant to such Purchaser’s Common Warrant
(including, issuance of a replacement warrant certificate evidencing such restored right).
5.14. Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu
of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15. Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law
would be adequate.
5.16. Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or
a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
39
5.17. Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
the legal counsel to the Placement Agent. The legal counsel of the Placement Agent does not represent any of the Purchasers and only
represents the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood
and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser,
solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.
5.18. Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have
been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
5.19. Saturdays,
Sundays, Holidays, etc. If the last or appointed Calendar Day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
5.20. Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.21. WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND
EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
[DYAI
Securities Purchase Agreement Signature Pages Follow]
40
[DYAI
Securities Purchase Agreement – Company Signature Page]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
DYADIC
INTERNATIONAL, INC.
Address
for Notice:
By:
Email:
memalfarb@dyadic.com
Name:
Mark
Emalfarb
Title:
Chief
Executive Officer
41
[DYAI
Securities Purchase Agreement – Investor Signature Page]
IN
WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed by its authorized signatory as of
the date first indicated above.
Name
of Purchaser:
[●]
Signature
of Authorized Signatory of Purchaser:
Name
of Authorized Signatory:
[●]
Title
of Authorized Signatory:
[●]
Address of Authorized Signatory:
[●]
Address
for Notice to Purchaser:
[●]
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
[●]
Subscription
Amount:
$[●]
Number
of Common Warrants:
[●]
Beneficial
Ownership Blocker:
[●]
Employer
Identification Number:
[●]
42
Exhibit
1.16.1
Form
of Common Warrant
43
Exhibit
1.37
Form
of Lock-Up Agreement
44
Exhibit
1.55
Form
of Registration Rights Agreement
45
EX-10.3
EX-10.3
Filename: ex10-3.htm · Sequence: 6
Exhibit
10.3
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of August 13, 2026, between Dyadic
International, Inc., a Delaware corporation (the “Company”), and each of the several purchasers signatory hereto
(each such purchaser, a “Purchaser” and, collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement with respect to the sale of Warrants under Regulation D, dated as of
the date hereof, between the Company and each Purchaser (the “Purchase Agreement”).
The
Company and each Purchaser hereby agrees as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
1.1.
“Advice” shall have the meaning set forth in Section 6.3.
1.2.
“Effectiveness Date” means, with respect to the Initial Registration Statement required to be filed hereunder,
thirty (30) Calendar Days following the Filing Date (or, in the event of a full review by the Commission, sixty (60) Calendar Days following
the Filing Date) and with respect to any additional Registration Statements which may be required pursuant to Section 2.3 or Section
3.3, thirty (30) Calendar Days following the date on which an additional Registration Statement is required to be filed hereunder (or,
in the event of a full review by the Commission, sixty (60) Calendar Days following the date such additional Registration Statement is
required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission that one
or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness
Date as to such Registration Statement shall be on or before the third (3rd) Trading Day following the date on which the Company is so
notified if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a Calendar
Day that is not a Trading Day, then the Effectiveness Date shall be the next succeeding Trading Day.
1.3.
“Effectiveness Period” shall have the meaning set forth in Section 2.1.
1.4.
“Event” shall have the meaning set forth in Section 2.4.
1.5.
“Event Date” shall have the meaning set forth in Section 2.4.
1.6.
“Filing Date” means, with respect to the Initial Registration Statement required hereunder thirty (30) Calendar
Days after the Closing Date and, with respect to any additional Registration Statements which may be required pursuant to Section 2.3
or Section 3.3, the earliest practical date on which the Company is permitted by SEC Guidance to file such additional Registration Statement
related to the Registrable Securities.
1.7.
“Holder” or “Holders” means the holder or holders, as the case may be, from time
to time of Registrable Securities.
1.8.
“Indemnified Party” shall have the meaning set forth in Section 5.3.
1.9.
“Indemnifying Party” shall have the meaning set forth in Section 5.3.
1.10.
“Initial Registration Statement” means the initial Registration Statement filed pursuant to this Agreement.
1.11.
“Losses” shall have the meaning set forth in Section 5.1.
1.12.
“Plan of Distribution” shall have the meaning set forth in Section 2.1.
1.13.
“Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus
that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated by the Commission pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
1.14.
“Registrable Securities” means, as of any date of determination, (a) all Common Stock issued under the Purchase
Agreement held by the Purchasers, (b) all Warrant Shares then issued and issuable upon exercise of the Warrants (assuming on such date
the Warrants are exercised in full without regard to any exercise limitations therein), and (c) any securities issued or then issuable
upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided, however,
that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the
effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long as (a) a Registration Statement
with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable
Securities have been disposed of by the Holder in accordance with such effective Registration Statement, (b) such Registrable Securities
have been previously sold in accordance with Rule 144, or (c) such securities become eligible for resale without the requirement for
the Company to be in compliance with the current public information requirement under Rule 144 (if such requirement is applicable) as
set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the affected Holders
(assuming that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend upon which,
such securities were issued or are issuable, were at no time held by any Affiliate of the Company, as reasonably determined by the Company,
upon the advice of counsel to the Company).
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1.15.
“Registration Statement” means any registration statement required to be filed hereunder pursuant to Section
2.1 and any additional registration statements contemplated by Section 2.3 or Section 3.3, including (in each case) the Prospectus, amendments
and supplements to any such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by reference in any such registration statement. For the sake
of clarity, a Registration Statement must include financial statements that are current at the time of each filing and satisfy the requirements
of Regulation S-X to satisfy the definitions of Registration Statement in this Section 1.15, Filing Date in Section 1.6 and Effectiveness
Date in Section 1.2 hereof.
1.16.
“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be
amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially
the same purpose and effect as such Rule.
1.17.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be
amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially
the same purpose and effect as such Rule.
1.18.
“Selling Stockholder Questionnaire” shall have the meaning set forth in Section 3.1.
1.19.
“SEC Guidance” means (i) any publicly-available written or oral guidance of the Commission staff, or any comments,
requirements or requests of the Commission staff and (ii) the Securities Act.
2. Registration
Statement.
2.1.
On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale
of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-1 (or Form S-3 to the extent
the Company is eligible to use such registration statement form, subject to the provisions of Section 2.5) and shall contain (unless
otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto
as Annex 2.1.1 and substantially the “Selling Stockholders” section attached hereto as Annex 2.1.2;
provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s
express prior written consent. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Registration
Statement filed under this Agreement (including, without limitation, under Section 3.3) to be declared effective under the Securities
Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use
its best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable
Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without
volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current
public information requirement under Rule 144 (to the extent applicable), as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness
Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York
City time) on a Trading Day. The Company shall immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration
Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date
requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after
the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so
notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as aforesaid
shall be deemed an Event under Section 2.4.
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2.2.
Notwithstanding the registration obligations set forth in Section 2.1, if all of the Registrable Securities cannot, as a result of the
application of the SEC Guidance, be registered for resale as a secondary offering on a single registration statement, the Company agrees
to promptly inform each of the Holders thereof and use its best efforts to file amendments to the Initial Registration Statement as required
by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or
such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section
2.5 with respect to filing on Form S-3 or other appropriate form and subject to the provisions of Section 2.4 with respect to the payment
of liquidated damages; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent
efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance,
including without limitation, Compliance and Disclosure Interpretation 612.09.
2.3.
Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2.4, if the
Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular
Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission
for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its
Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
2.3.1.
First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities;
2.3.2.
Second, the Company shall reduce Registrable Securities represented by the Warrant Shares (applied, in the case that some Warrant Shares
may be registered, to the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders);
and
2.3.3.
Third, the Company shall reduce Registrable Securities represented by Common Stock (applied, in the case that some Common Stock may be
registered, to the Holders on a pro rata basis based on the total number of unregistered Common Stock held by such Holders).
In
the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the
calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with
the foregoing, the Company will use its best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance
provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form
available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement,
as amended.
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2.4.
If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration
Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3.1 herein or the Company
subsequently withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this clause (i)) as
of the Filing Date, or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance
with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company
is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed”
or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, the Company fails to file
a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement
within ten (10) Calendar Days after the receipt of comments by or notice from the Commission that such amendment is required in order
for such Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable
Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement (provided if the
Registration Statement does not allow for the resale of Registrable Securities at prevailing market prices (i.e., only allows for fixed
price sales), the Company shall have been deemed to have not satisfied this clause), or (v) after the effective date of a Registration
Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included
in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable
Securities, for more than ten (10) consecutive Calendar Days or more than an aggregate of fifteen (15) Calendar Days (which need not
be consecutive Calendar Days) during any 12-month period (any such failure or breach being referred to as an “Event”,
and for purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such
five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such ten (10) Calendar Day period is exceeded,
and for purpose of clause (v) the date on which such ten (10) or fifteen (15) Calendar Day period, as applicable, is exceeded being referred
to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable
law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured
by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages
and not as a penalty, equal to two percent (2%) of the aggregate exercise price of all Warrant Shares not registered hereby. If the Company
fails to pay any partial liquidated damages pursuant to this Section 2.4 in full within seven (7) Calendar Days after the date payable,
the Company will pay interest thereon at a rate of fifteen percent (15%) per annum (or such lesser maximum amount that is permitted to
be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus
all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata
basis for any portion of a month prior to the cure of an Event.
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2.5.
If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the
resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3
as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect
until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
2.6.
Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate
of a Holder as any underwriter without the prior written consent of such Holder.
3. Registration
Procedures. In connection with the Company’s registration obligations hereunder,
the Company shall:
3.1.
Not less than five (5) Trading Days prior to the filing of each Registration Statement and not less than one (1) Trading Day prior to
the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed
to be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of all such documents proposed to be filed,
which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders,
and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall
be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation within the meaning
of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto
to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Company is
notified of such objection in writing no later than five (5) Trading Days after the Holders have been so furnished copies of a Registration
Statement or one (1) Trading Day after the Holders have been so furnished copies of any related Prospectus or amendments or supplements
thereto. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex 3.1
(a “Selling Stockholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the Filing
Date or by the end of the fourth (4th) Trading Day following the date on which such Holder receives draft materials in accordance with
this Section.
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3.2.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant
to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration
Statement or any amendment thereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence
from and to the Commission relating to a Registration Statement (provided that, the Company shall excise any information contained therein
which would constitute material non-public information regarding the Company or any of its Subsidiaries), and (iv) comply in all material
respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable
Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with
the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus
as so supplemented.
3.3.
If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock
then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to
the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such
Registrable Securities.
3.4.
Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied
by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible
(and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm
such notice in writing no later than one (1) Trading Day following the Trading Day (i)(A) when a Prospectus or any Prospectus supplement
or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether
there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration
Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii)
of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration
Statement or Prospectus or for additional information, (iii) of the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities
or the initiation of any Proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation
or threatening of any Proceeding for such purpose, (v) of the occurrence of any event or passage of time that makes the financial statements
included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus
or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions
to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the
case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the
occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and
that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration
Statement or Prospectus; provided, however, that in no event shall any such notice contain any information which would
constitute material, non-public information regarding the Company or any of its Subsidiaries and the Company agrees that the Holders
shall not have any duty of confidentiality to the Company or any of its Subsidiaries and shall not have any duty to the Company not to
trade on the basis of such information.
7
3.5.
Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness
of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
3.6.
Furnish to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested
by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission, provided that any such item which is available on the EDGAR system (or
successor thereto) need not be furnished in physical form.
3.7.
Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3.4.
3.8.
Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate
with the selling Holders in connection with the registration or qualification (or exemption from the registration or qualification) of
such Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during
the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions
of the Registrable Securities covered by each Registration Statement, provided that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to service of process in any such jurisdiction.
3.9.
If requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable
Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted
by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered
in such names as any such Holder may request.
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3.10.
Upon the occurrence of any event contemplated by Section 3.4, as promptly as reasonably possible under the circumstances taking into
account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure
of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to
the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document
so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section
3.4 above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall
suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly
as is practicable. The Company shall be entitled to exercise its right under this Section 3.10 to suspend the availability of a Registration
Statement and Prospectus, subject to the payment of partial liquidated damages otherwise required pursuant to Section 2.4, for a period
not to exceed 60 Trading Days (which need not be consecutive Trading Days) in any 12-month period.
3.11.
Otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities
Act and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any
supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing
if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof,
the Holders are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions
as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder.
3.12.
The Company shall use its best efforts to maintain eligibility for use of Form S-3 (or any successor form thereto) for the registration
of the resale of Registrable Securities.
3.13.
The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock
beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control
over the Common Stock. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration
of the Registrable Securities solely because any Holder fails to furnish such information within three (3) Trading Days after the Company’s
request, any liquidated damages that are accruing at such time as to such Holder only shall be tolled and any Event that may otherwise
occur solely because of such delay shall be suspended as to such Holder only, until such information is delivered to the Company.
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4. Registration
Expenses. All fees and expenses incident to the performance of, or compliance with,
this Agreement by the Company shall be borne by the Company whether or not any Registrable
Securities are sold pursuant to a Registration Statement. The fees and expenses referred
to in the foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses of the Company’s counsel
and independent registered public accountants) (A) with respect to filings made with the
Commission, (B) with respect to filings required to be made with any Trading Market on which
the Common Stock is then listed for trading, and (C) in compliance with applicable state
securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without
limitation, fees and disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company, (v) Securities Act liability insurance, if the Company so desires such insurance
to be purchased at the sole discretion of the Company, and (vi) fees and expenses of all
other Persons retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible for all of
its internal expenses incurred in connection with the consummation of the transactions contemplated
by this Agreement (including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any annual audit and
the fees and expenses incurred in connection with the listing of the Registrable Securities
on any securities exchange as required hereunder. In no event shall the Company be responsible
for any broker or similar commissions of any Holder or, except to the extent provided for
in the Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification.
5.1.
Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold
harmless each Holder, the officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities
as principal as a result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees
(and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any
other title) of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other Persons with
a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such
controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities,
costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”),
as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration
Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading
or (2) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any
rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but
only to the extent, that (i) such untrue statements or omissions are based solely upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that the
Holder has approved Annex 2.1.1 hereto for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section
3.4(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt
by such Holder of the Advice contemplated in Section 6.3. The Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is
aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified
person and shall survive the transfer of any Registrable Securities by any of the Holders in accordance with Section 6.7.
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5.2.
Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its
directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent
permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely upon: any untrue
or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading (i) to the extent, but only to the extent, that such untrue statement or omission
is contained in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement
or such Prospectus or (ii) to the extent, but only to the extent, that such information relates to such Holder’s information provided
in the Selling Stockholder Questionnaire or the proposed method of distribution of Registrable Securities and was reviewed and expressly
approved in writing by such Holder expressly for use in a Registration Statement (it being understood that the Holder has approved Annex
2.1.1 hereto for this purpose), such Prospectus or in any amendment or supplement thereto. In no event shall the liability of a selling
Holder be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim
relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue statement
or omission) received by such Holder upon the sale of the Registrable Securities included in the Registration Statement giving rise to
such indemnification obligation.
5.3.
Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity
is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume
the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof, provided that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that
it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have materially and adversely prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party
has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such
Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to
any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to
the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to
assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes
an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
11
Subject
to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section)
shall be paid to the Indemnified Party, as incurred, within ten (10) Trading Days after written notice thereof to the Indemnifying Party,
provided that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable
to such actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) not to be entitled to indemnification hereunder.
5.4.
Contribution. If the indemnification under Section 5.1 or 5.2 is unavailable to an Indemnified Party or insufficient to
hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party
in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount
paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement,
any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such
party in accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5.4 were determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately
preceding paragraph. In no event shall the contribution obligation of a Holder of Registrable Securities be greater in amount than the
dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the
amount of any damages such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission) received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.
The
indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
6. Miscellaneous.
6.1.
Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement,
each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement,
including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and
each Holder agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect
of such breach, it shall not assert or shall waive the defense that a remedy at law would be adequate.
12
6.2.
No Piggyback on Registrations; Prohibition on Filing Other Registration Statements. Neither the Company nor any of its
security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in any Registration
Statements other than the Registrable Securities. The Company shall not file any other registration statements until all Registrable
Securities are registered pursuant to a Registration Statement that is declared effective by the Commission, provided that this Section
6.2 shall not prohibit the Company from (i) filing amendments (including post-effective amendments) to registration statements filed
prior to the date of this Agreement, or (ii) filing a registration statement on Form S-3 (and any prospectus supplement thereunder) to
replace the Company’s Registration Statement on Form S-3 (File No. 333-273829) prior to the expiration thereof pursuant to Rule
415(a)(5) under the Securities Act.
6.3.
Discontinued Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice
from the Company of the occurrence of any event of the kind described in Section 3.4(iii) through (vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will
use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company agrees and acknowledges
that any periods during which the Holder is required to discontinue the disposition of the Registrable Securities hereunder shall be
subject to the provisions of Section 2.4.
6.4.
Piggy-Back Registrations. If, at any time during the Effectiveness Period, there is not an effective Registration Statement
covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other
than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to
be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with the Company’s
stock option or other employee benefit plans, then the Company shall deliver to each Holder a written notice of such determination and,
if within fifteen (15) Calendar Days after the date of the delivery of such notice, any such Holder shall so request in writing, the
Company shall include in such registration statement all or any part of such Registrable Securities such Holder requests to be registered;
provided, however, that the Company shall not be required to register any Registrable Securities pursuant to this Section
6.4 that are eligible for resale pursuant to Rule 144 (without volume restrictions and provided the Company is in compliance with the
current public information requirement under Rule 144) promulgated by the Commission pursuant to the Securities Act or that are the subject
of a then effective Registration Statement that is available for resales or other dispositions by such Holder.
13
6.5.
Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be
in writing and signed by the Company and the Holders of 50.1% or more of the then outstanding Registrable Securities (for purposes of
clarification, this includes any Registrable Securities issuable upon exercise or conversion of any Security); provided that no such
amendment, action or omission that adversely affects, alters or changes the interests of any Holder in a manner disproportionate to the
other Holders shall be effective against such Holder without the prior written consent of such Holder. If a Registration Statement does
not register all of the Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then
the number of Registrable Securities to be registered for each Holder shall be reduced pro rata among all Holders and each Holder shall
have the right to designate which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of
a Holder or some Holders and that does not directly or indirectly affect the rights of other Holders may be given only by such Holder
or Holders of all of the Registrable Securities to which such waiver or consent relates; provided, however, that the provisions
of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of the first sentence of this
Section 6.5. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision
of this Agreement unless the same consideration also is offered to all of the parties to this Agreement.
6.6.
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be delivered as set forth in the Purchase Agreement.
6.7.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns
of each of the parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations
hereunder without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign
their respective rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement.
6.8.
No Inconsistent Agreements. The Company has not entered, as of the date hereof, nor shall the Company, on or after the
date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted
to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Except as set forth on Schedule 6.8, the Company
has not previously entered into any agreement granting any registration rights with respect to any of its securities to any Person that
have not been satisfied in full.
6.9.
Execution and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered
to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered
by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf” signature page
were an original thereof.
14
6.10.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall
be determined in accordance with the provisions of the Purchase Agreement.
6.11.
Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
6.12.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
6.13.
Headings. The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall
not be deemed to limit or affect any of the provisions hereof.
6.14.
Independent Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not
joint with the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations
of any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action
taken by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture
or any other kind of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity
with respect to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges
that the Holders are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations
or transactions. Each Holder shall be entitled to protect and enforce its rights, including without limitation the rights arising out
of this Agreement, and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such
purpose. The use of a single agreement with respect to the obligations of the Company contained herein was solely in the control of the
Company, not the action or decision of any Holder, and was done solely for the convenience of the Company and not because it was required
or requested to do so by any Holder. It is expressly understood and agreed that each provision contained in this Agreement is between
the Company and a Holder, solely, and not between the Company and the Holders collectively and not between and among Holders.
[DYAI
Registration Rights Agreement Signature Pages Follow]
15
[DYAI
Registration Rights Agreement – Company Signature Page]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
DYADIC
INTERNATIONAL, INC.
By:
Name:
Mark
Emalfarb
Title:
Chief
Executive Officer
[DYAI
Registration Rights Agreement – Holder Signature Page]
Name
of Holder:
Signature
of Authorized Signatory of Holder:
Name
of Authorized Signatory:
Title
of Authorized Signatory:
Address of Authorized Signatory:
Annex
2.1.1
Plan
of Distribution
Each
Selling Stockholder (the “Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange,
market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices.
A Selling Stockholder may use any one or more of the following methods when selling securities:
●
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
●
block
trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
●
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
●
an
exchange distribution in accordance with the rules of the applicable exchange;
●
privately
negotiated transactions;
●
settlement
of short sales;
●
in
transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated
price per security;
●
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
●
a
combination of any such methods of sale; or
●
any
other method permitted pursuant to applicable law.
The
Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933,
as amended (the “Securities Act”), if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or
markdown in compliance with FINRA Rule 2121.
Annex 2.1.1 - 1
In
connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
The
Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company
has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under
the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders
without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar
effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule
of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable
state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the
Common Stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders
and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
Annex 2.1.1 - 2
Annex
2.1.2
SELLING
STOCKHOLDERS
The
shares of Common Stock being offered by the selling stockholders are those previously issued to the selling stockholders, and those issuable
to the selling stockholders, upon exercise of the warrants. For additional information regarding the issuances of those shares of Common
Stock and warrants, see “Private Placement of shares of Common Stock and Warrants” above. We are registering the shares of
Common Stock in order to permit the selling stockholders to offer the Common Stock for resale from time to time. Except for the ownership
of the shares of Common Stock and the warrants, the selling stockholders have not had any material relationship with us within the past
three years.
The
table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of Common Stock by
each of the selling stockholders. The second column lists the number of shares of Common Stock beneficially owned by each selling stockholder,
based on its ownership of the shares of Common Stock and warrants, as of [●], 2026, assuming exercise of the warrants held by the
selling stockholders on that date, without regard to any limitations on exercises. The third column lists the shares of Common Stock
being offered by this prospectus by the selling stockholders. The fourth column assumes the sale of all of the Common Stock offered by
the selling stockholders pursuant to this prospectus.
In
accordance with the terms of a registration rights agreement with the selling stockholders, this prospectus generally covers the resale
of the sum of (i) the number of shares of Common Stock issued to the selling stockholders in the “Private Placement of shares of
Common Stock and Warrants” described above and (ii) the maximum number of shares of Common Stock issuable upon exercise of the
related warrants, determined as if the outstanding warrants were exercised in full as of the Trading Day immediately preceding the date
this registration statement was initially filed with the SEC, each as of the Trading Day immediately preceding the applicable date of
determination and all subject to adjustment as provided in the registration rights agreement, without regard to any limitations on the
exercise of the warrants.
Under
the terms of the warrants, a selling stockholder may not exercise the warrants to the extent such exercise would cause such selling stockholder,
together with its affiliates and attribution parties, to beneficially own a number of shares of Common Stock which would exceed 4.99%
or 9.99%, as applicable, of our then outstanding Common Stock following such exercise, excluding for purposes of such determination shares
of Common Stock issuable upon exercise of the warrants that have not been exercised. The numbers of Common Stock in the second and fourth
columns do not reflect this limitation. The selling stockholders may sell all, some or none of their Common Stock in this offering. See
“Plan of Distribution.”
Annex 2.1.2 - 1
Name
of Selling
Stockholder
Number
of shares of
Common Stock
Beneficially Owned
Prior to Offering
Maximum
Number of
shares of
Common Stock to be
Sold Pursuant to
this Prospectus
Number
of shares of Common Stock
Beneficially Owned
After Offering
Annex 2.1.2 - 2
Annex
3.1
DYADIC
INTERNATIONAL, INC.
Selling
Stockholder Notice and Questionnaire
The
undersigned beneficial owner of shares of Common Stock (the “Registrable Securities”) of Dyadic International,
Inc., a Delaware corporation (the “Company”), understands that the Company has filed or intends to file with
the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration
Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities
Act”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration
Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling Stockholder”) of Registrable Securities hereby elects to include
the Registrable Securities owned by it in the Registration Statement.
The
undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
1.
Name.
(a)
Full
Legal Name of Selling Stockholder
(b)
Full
Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities are held:
(c)
Full
Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote
or dispose of the securities covered by this Questionnaire):
Annex 3.1 - 1
2.
Address for Notices to
Selling Stockholder:
Telephone:
Email:
Contact
Person:
3.
Broker-Dealer Status:
(a)
Are
you a broker-dealer?
Yes
☐ No ☐
(b)
If
“yes” to Section 3(a), did you receive your Registrable Securities as compensation for investment banking services to
the Company?
Yes
☐ No ☐
Note:
If
“no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the
Registration Statement.
(c)
Are
you an affiliate of a broker-dealer?
Yes
☐ No ☐
(d)
If
you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities in the ordinary course of business,
and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable Securities?
Yes
☐ No ☐
Note:
If
“no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the
Registration Statement.
Annex 3.1 - 2
4.
Beneficial Ownership of
Securities of the Company Owned by the Selling Stockholder.
Except
as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other
than the securities issuable pursuant to the Purchase Agreement.
(a)
Type
and Amount of other securities beneficially owned by the Selling Stockholder:
5.
Relationships with the
Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of
5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the past three years.
State
any exceptions here:
The
undersigned agrees to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may
occur subsequent to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall
not be required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.
By
signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and
the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto.
The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment
of the Registration Statement and the related prospectus and any amendments or supplements thereto.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either
in person or by its duly authorized agent.
Date:
_______________________________________
Beneficial
Owner: _________________________________
By:
Name:
Title:
PLEASE
EMAIL A .PDF COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO MEMALFARB@DYADIC.COM, WITH A COPY TO KIMBERLY.PETILLO-DECOSSARD@WHITECASE.COM.
Annex 3.1 - 3
EX-10.4
EX-10.4
Filename: ex10-4.htm · Sequence: 7
Exhibit
10.4
August
13, 2026
PERSONAL
AND CONFIDENTIAL
Mr.
Mark Emalfarb, Chief Executive Officer
Dyadic
International, Inc.
1044
North U.S. Highway One
Suite
201
Jupiter,
FL 33477-5094
Re: DYAI
| Registered Direct and PIPE Offering | Placement Agent Agreement
Dear
Mr. Emalfarb:
The
purpose of this placement agent agreement is to outline our agreement pursuant to which Aegis Capital Corp. (“Aegis”
or the “Placement Agent”) will act as the placement agent on a “best efforts” basis in connection
with the proposed Registered Direct and PIPE Offering (the “Placement”) by Dyadic International, Inc. (collectively,
with its subsidiaries and affiliates, the “Company”) of units consisting of its shares of Common Stock and
warrants to purchase its shares of Common Stock (the “Securities”). This placement agent agreement sets forth
certain conditions and assumptions upon which the Placement is premised. The Company expressly acknowledges and agrees that Aegis’s
obligations hereunder are on a reasonable “best efforts” basis only and that the execution of this Agreement does not constitute
a commitment by Aegis to purchase the Securities and does not ensure the successful placement of the Securities or any portion thereof
or the success of Aegis with respect to securing any other financing on behalf of the Company. The Company confirms that entry into this
placement agent agreement and completion of the Placement with Aegis will not breach or otherwise violate the Company’s obligations
to any other party or require any payments to such other party. For the sake of clarity, such obligations may include but not be limited
to obligations under an engagement letter, placement agency agreement, underwriting agreement, advisory agreement, right of first refusal,
tail fee obligation or other agreement.
The
terms of our agreement are as follows:
1. Engagement.
The Company hereby engages Aegis, for the period beginning on the date hereof and ending
five (5) business days thereafter or upon the completion of the Placement, whichever is sooner
(the “Engagement Period”), to act as the Company’s exclusive
investment bank in connection with the proposed Placement. During the Engagement Period or
until the consummation of the Placement, and as long as Aegis is proceeding in good faith
with preparations for the Placement, the Company agrees not to solicit, negotiate with or
enter into any agreement with any other source of financing (whether equity, debt or otherwise),
any underwriter, potential underwriter, placement agent, financial advisor, investment banking
firm or any other person or entity in connection with an offering of the Company’s
debt or equity securities or any other financing by the Company. Aegis will use its reasonable
“best efforts” to solicit offers to purchase the Securities from the Company
on the terms, and subject to the conditions, set forth in the Prospectus (as defined below).
Aegis shall use commercially reasonable efforts to assist the Company in obtaining performance
by each Purchaser (as defined below) whose offer to purchase Securities has been solicited
by Aegis, but Aegis shall not, except as otherwise provided in this Agreement, be obligated
to disclose the identity of any potential purchaser or have any liability to the Company
in the event any such purchase is not consummated for any reason. The Company acknowledges
that under no circumstances will Aegis be obligated to underwrite or purchase any Securities
for its own account and, in soliciting purchases of the Securities, Aegis shall act solely
as an agent of the Company. The services provided pursuant to this placement agent agreement
shall be on an “agency” basis and not on a “principal” basis.
2. The
Placement. The Placement is expected to consist of a sale of approximately $2.9 million
of the Company’s Securities. Aegis will act as placement agent for the Placement subject
to, among other matters referred to herein and additional customary conditions, completion
of Aegis’s due diligence examination of the Company and its affiliates, listing approval
by the Nasdaq Capital Market (“Exchange”) of the Securities to
be issued, and the execution of a definitive Securities Purchase Agreement in connection
with the Placement (the “Securities Purchase Agreement”). The actual
size of the Placement, the precise number of Securities to be offered by the Company and
the offering price will be the subject of continuing negotiations between the Company and
the investors thereto. In connection with the entry into the Securities Purchase Agreement,
the Company (i) will meet with Aegis and its representatives to discuss such due diligence
matters and to provide such documents as Aegis may require; (ii) will not file with the Commission
any document regarding the Placement without the prior approval of Aegis and its counsel;
(iii) will deliver to Aegis and the investors in the Placement such legal and accounting
opinions and letters (including, without limitation, legal opinions, good standing certificates
and officers’ and secretary certificates, but excluding negative assurance letters)
as Aegis may reasonably require and are customary for transactions similar to the Placement,
all in form and substance reasonably acceptable to Aegis and (iv) will ensure that Aegis
is a third party beneficiary of all representations, warranties, covenants, closing conditions
and deliverables in connection with the Placement.
3. Placement
Compensation. The placement commission will be 7.0% for the Placement.
4. Registration
Statement. To the extent the Company decides to proceed with the Placement, the shares
of Common Stock included in the Securities (the “Shares”) will
be offered and sold pursuant to the Company’s existing shelf registration statement
on Form S-3 (File No. 333-273829) previously filed with the Securities and Exchange Commission
(the “Commission”) under the Securities Act of 1933, as amended
(the “Securities Act”), and declared effective on August 25, 2023
(the “Registration Statement”), and the Company will prepare and
file with the Commission, in accordance with Rule 424(b) under the Securities Act, a prospectus
supplement to the base prospectus included in the Registration Statement (together with such
base prospectus, the “Prospectus”) covering the sale of the Shares
in the Placement. The PIPE Common Warrants and the shares of Common Stock issuable upon exercise
thereof will be issued in a concurrent private placement in reliance upon Section 4(a)(2)
of the Securities Act and Regulation D thereunder, and the Company will, as soon as practicable
and in no event later than the times set forth in the registration rights agreement to be
entered into with the investors in the Placement, prepare and file with the Commission a
registration statement covering the resale of such shares of Common Stock (the “Resale
Registration Statement”). The Prospectus, the Resale Registration Statement
and all amendments and supplements thereto, will be in form reasonably satisfactory to the
investors, Aegis and counsel to the investors and Aegis. Other than any information provided
by the investors or Aegis in writing specifically for inclusion in the Registration Statement
or the Prospectus, the Company will be solely responsible for the contents of its Registration
Statement and Prospectus and any and all other written or oral communications provided by
or on behalf of the Company to any actual or prospective investor of the Securities, and
the Company represents and warrants that such materials and such other communications will
not, as of the date of the offer or sale of the Securities, contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were
made, not misleading. If at any time prior to the completion of the offer and sale of the
Securities an event occurs that would cause the Registration Statement or Prospectus (as
supplemented or amended) to contain an untrue statement of a material fact or to omit to
state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, the Company will notify Aegis immediately
of such event and Aegis will suspend solicitations of the prospective purchasers of the Securities
until such time as the Company shall prepare a supplement or amendment to the Registration
Statement or Prospectus that corrects such statement or omission.
5. Lock-Ups.
In connection with the Placement, the Company’s directors, executive officers, employees
and shareholders holding at least ten percent (10%) of the outstanding common stock immediately
prior to the Placement will enter into customary “lock-up” agreements in favor
of the Placement Agent for a period of ninety (90) days after the Release Date (as defined
in the Securities Purchase Agreement) (the “Lock-Up Period”); provided,
however, that any sales by parties to the lock-ups shall be subject to the lock-up agreements
and provided further, that none of such common stock shall be saleable in the public market
until the expiration of the Lock-Up Period.
6. Company
Standstill. In connection with the Placement, without the prior written consent of
the investors, the Company will not, for a period of ninety (90) days after the Release Date
(as defined in the Securities Purchase Agreement) (the “Standstill Period”),
(a) offer, sell, issue, or otherwise transfer or dispose of, directly or indirectly, any
equity of the Company or any securities convertible into or exercisable or exchangeable for
equity of the Company (; (b) file or caused to be filed any registration statement with the
Commission relating to the offering of any equity of the Company or any securities convertible
into or exercisable or exchangeable for equity of the Company; or (c) enter into any agreement
or announce the intention to effect any of the actions described in subsections (a) or (b)
hereof (all of such matters, the “Standstill Restrictions”). So
long as none of such equity securities shall be saleable in the public market until the expiration
of the Standstill Period, the following matters shall not be prohibited by the Standstill
Restrictions: (i) the adoption of an equity incentive plan and the grant of awards or equity
pursuant to any equity incentive plan, and the filing of a registration statement on Form
S-8; (ii) securities issued pursuant to agreements, options, restricted share units or convertible
securities existing as of the date hereof provided the terms are not modified (including
the exercise or conversion of the Company’s outstanding Senior Secured Convertible
Promissory Notes); and (iii) securities issued pursuant to acquisitions or strategic transactions
(whether by merger, consolidation, purchase of equity, purchase of assets, reorganization
or otherwise) approved by a majority of the disinterested directors of the Company, provided
that such securities are issued as “restricted securities” (as defined in Rule
144) and carry no registration rights that require or permit the filing of any registration
statement in connection therewith during the Standstill Period, and provided that any such
issuance shall only be to a person or entity (or to the equityholders of an entity) which
is, itself or through its subsidiaries, an operating company or an owner of an asset in a
business synergistic with the business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which
the Company is issuing securities primarily for the purpose of raising capital or to an entity
whose primary business is investing in securities. In no event should any equity transaction
during the Standstill Period result in the sale of equity at an offering price to the public
less than that of the Placement referred herein.
7. Expenses.
The Company will be responsible for and will pay all expenses relating to the Placement,
including, without limitation, (a) all filing fees and expenses relating to the registration
of the Securities with the Commission; (b) all FINRA Public Offering filing fees; (c) all
fees and expenses relating to the listing of the Company’s equity or equity-linked
securities on an Exchange; (d) all fees, expenses and disbursements relating to the registration
or qualification of the Securities under the “blue sky” securities laws of such
states and other jurisdictions as Aegis may reasonably designate (including, without limitation,
all filing and registration fees, and the reasonable fees and disbursements of the Company’s
“blue sky” counsel, which will be Aegis’s counsel) unless such filings
are not required in connection with the Company’s proposed Exchange listing; (e) any
fees for counsel to lead investors in the Placement; (f) all fees, expenses and disbursements
relating to the registration, qualification or exemption of the Securities under the securities
laws of such foreign jurisdictions as Aegis may reasonably designate; (g) the costs of all
mailing and printing of the Placement documents; (h) transfer and/or stamp taxes, if any,
payable upon the transfer of Securities from the Company to Aegis; (i) the fees and expenses
of the Company’s accountants; and (j) $85,000 for reasonable legal fees and disbursements
for Aegis’s counsel.
8. Right
of First Refusal. If, for the period beginning on the Closing of the Placement and
ending nine (9) months after the commencement of sales in the Placement, the Company or any
of its subsidiaries (a) decides to finance or refinance any indebtedness, Aegis (or any affiliate
designated by Aegis) shall have the right to act as sole book-runner, sole manager, sole
placement agent or sole agent with respect to such financing or refinancing; or (b) decides
to raise funds by means of a public offering (not including any existing at-the-market facility
in place as of the date hereof) or a private placement or any other capital raising financing
of equity, equity-linked or debt securities, Aegis (or any affiliate designated by Aegis)
shall have the right to act as sole book-running manager, sole underwriter or sole placement
agent for such financing. If Aegis or one of its affiliates decides to accept any such engagement,
the agreement governing such engagement (each, a “Subsequent Transaction Agreement”)
will contain, among other things, provisions for customary fees for transactions of similar
size and nature, but in no event will the fees be less than those outlined herein, and the
provisions of this placement agent agreement, including indemnification, that are appropriate
to such a transaction. Notwithstanding the foregoing, the decision to accept the Company’s
engagement under this Section 8 shall be made by Aegis or one of its affiliates, by
a written notice to the Company, within ten (10) Business Days of the receipt of the Company’s
notification of its financing needs, including a detailed term sheet. Aegis’s determination
of whether in any case to exercise its right of first refusal will be strictly limited to
the terms on such term sheet, and any waiver of such right of first refusal shall apply only
to such specific terms. If Aegis waives its right of first refusal, any deviation from such
terms (including without limitation after the launch of a subsequent transaction) shall void
the waiver and require the Company to seek a new waiver from the right of first refusal on
the terms set forth in this Section 8. Notwithstanding anything else in this Section
8, if the Company (i) enters into a financing transaction directly with an investor for which
it has a relationship separate from Aegis, and if the Company does not engage a book-running
manager, underwriter or placement in such transaction, or (ii) issues securities pursuant
to acquisitions or strategic transactions (whether by merger, consolidation, purchase of
equity, purchase of assets, reorganization or otherwise) approved by a majority of the disinterested
directors of the Company, provided that any such issuance shall only be to a person or entity
(or to the equityholders of an entity) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the business of the Company
and shall provide to the Company additional benefits in addition to the investment of funds,
but shall not include a transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is investing in
securities or if the Company engages a book-running manager, underwriter or placement in
such transaction, then the Company has no obligation under this Section 8.
9. Closing;
Closing Deliverables. Unless otherwise directed by the Placement Agent, settlement
of the Securities shall occur via “Delivery Versus Payment” (“DVP”)
(i.e., on the Closing Date, the Company shall cause the Transfer Agent to issue the Securities
directly to the clearing firm designated by the Placement Agent; upon receipt of such Securities,
the Placement Agent shall promptly electronically deliver such Securities to the applicable
Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm)
by wire transfer to the Company).
9.1.
Company Deliveries.
9.1.1.
On the date
hereof, the Company shall deliver each of the following:
9.1.1.1 This Agreement duly executed by the
Company.
9.1.1.2 A certificate executed
by the Chief Financial Officer of the Company in customary form reasonably satisfactory to the Placement Agent and its counsel.
9.1.1.3 The Lock-Up Agreements duly executed
by the parties thereto.
9.1.1.4 The Registration
Rights Agreement duly executed by the Company.
9.1.2.
On or prior to the Closing Date, the Company
shall deliver each the following:
9.1.2.1
A legal opinion of White & Case LLP, addressed to the Placement Agent and the Purchasers, in form customary for transaction similar
to the Placement and in substance reasonably acceptable to the Placement Agent and Purchasers.
9.1.2.2
A copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a certificate
(or at the request of the Purchaser, book entry statement) evidencing a number of unregistered Shares equal to such Purchaser’s
Subscription Amount divided by the Per Unit Purchase Price for the Unregistered Securities, registered in the name of such Purchaser;
and, subject to the first sentence of Section 11, a copy of the irrevocable instructions to the Transfer Agent instructing
the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to the portion of such Purchaser’s Subscription Amount applicable to registered Shares, divided by the Per Unit Purchase
Price, registered in the name of such Purchaser.
9.1.2.3
The Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the
Chief Executive Officer or Chief Financial Officer.
9.1.2.4
The Company shall have provided Aegis the signed flow of funds executed by the Chief Executive Officer or Chief Financial Officer.
9.1.2.5
A duly executed and delivered Officers’ Certificate, in customary form reasonably satisfactory to the Placement Agent and its counsel.
9.1.2.6
The Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
9.1.2.7
The PIPE Common Warrants registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100.0%
of the number of Shares stated on such Purchaser’s signature page to the Securities Purchase Agreement.
10. Conditions
of the Obligations of the Placement Agent. The obligations of the Placement Agent
hereunder shall be subject to the accuracy of the representations and warranties on the part
of the Company set forth in the Securities Purchase Agreement (on which the Company authorizes
the Placement Agent to rely), in each case as of the date hereof and as of the Closing Date
as though then made, to the timely performance by the Company of its covenants and other
obligations hereunder on and as of such dates, and to each of the following additional conditions:
10.1.
Regulatory Matters.
10.1.1.
Effectiveness of Registration Statement; Rule 424 Information. The Registration Statement is effective on the date of this
Agreement, and, on the Closing Date no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto has been issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus
has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge,
contemplated by the Commission. The Company has complied with each request (if any) from the Commission for additional information. All
filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Date shall have been made
within the applicable time period prescribed for such filing by Rule 424.
10.1.2.
FINRA Clearance. On or before the Closing Date, the Placement Agent shall have received clearance from FINRA as to the
amount of compensation allowable or payable to the Placement Agent as described in the Registration Statement.
10.1.3.
Listing of Additional Shares. On or before the Closing Date, the Company shall have filed a notice with the Exchange with
respect to the Company’s additional listing of the securities sold in the Placement (if required by the Exchange).
10.2.
Closing Deliverables. The Company shall have delivered all closing deliverables to the Placement Agent as set forth in
Section 11.1 as of the time required and in form reasonably satisfactory to the Placement Agent.
10.2.1.
No Material Changes. Prior to and on the Closing Date: (i) there shall have been no Material Adverse Effect or development
involving a prospective Material Adverse Effect in the condition or prospects or the business activities, financial or otherwise, of
the Company from the latest dates as of which such condition is set forth in the Registration Statement, the Disclosure Package and the
Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any
affiliates of the Company before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable
decision, ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the
Company, except as set forth in the Registration Statement and the Prospectus; (iii) no stop order shall have been issued under the Securities
Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement and the
Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in
accordance with the Securities Act and the Securities Act Regulations and shall conform in all material respects to the requirements
of the Securities Act and the Securities Act Regulations, and neither the Registration Statement nor the Prospectus nor any amendment
or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
10.2.2.
Additional Documents. At the Closing Date, Placement Agent’s counsel shall have been furnished with such documents
and opinions as they may require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the Placement Agent and Placement Agent’s counsel.
11. Prior
Agreement. By entering into this Agreement, the parties agree that that certain letter
of engagement, dated August 9, 2026, entered into between the same parties hereof, shall
automatically terminate and cease to have any effect whatsoever and shall be superseded in
its entirety by this Agreement.
12. Termination.
Notwithstanding anything to the contrary contained herein, the Company agrees that the provisions
relating to the payment of fees, reimbursement of expenses, right of first refusal, indemnification
and contribution, equitable remedies, confidentiality, conflicts, independent contractor
and waiver of the right to trial by jury will survive any termination or expiration of this
placement agent agreement. Notwithstanding anything to the contrary contained herein, the
Company has the right to terminate the placement agent agreement for cause in compliance
with FINRA Rule 5110(g)(5)(B)(i). The exercise of such right of termination for cause eliminates
the Company’s obligations with respect to the provisions relating to right of first
refusal. Notwithstanding anything to the contrary contained in this placement agent agreement,
in the event that no Placement is completed for any reason whatsoever during the Engagement
Period, the Company shall be obligated to pay to Aegis its actual and accountable out-of-pocket
expenses related to the Placement (including the fees and disbursements of Placement Agent’s
legal counsel) and if applicable, for electronic road show service used in connection with
the Placement. During the engagement hereunder: (i) the Company will not, and will not permit
its representatives to, other than in coordination with Aegis, contact or solicit institutions,
corporations or other entities or individuals as potential purchasers of the Securities and
(ii) the Company will not pursue any financing transaction which would be in lieu of the
Placement. Furthermore, the Company agrees that during Aegis’s engagement hereunder,
all inquiries from prospective investors will be referred to Aegis.
13. Publicity.
The Company agrees that it will not issue press releases or engage in any other publicity,
without Aegis’s prior written consent, commencing on the date hereof and continuing
until the final Closing of the Placement.
14. Information.
During the Engagement Period or until the Closing, the Company agrees to cooperate with Aegis
and to furnish, or cause to be furnished, to Aegis, any and all information and data concerning
the Company, and the Placement that Aegis deems appropriate (the “Information”).
The Company will provide Aegis reasonable access during normal business hours from and after
the date of execution of this placement agent agreement until the Closing to all of the Company’s
assets, properties, books, contracts, commitments and records and to the Company’s
officers, directors, employees, appraisers, independent accountants, legal counsel and other
consultants and advisors. Except as contemplated by the terms hereof or as required by applicable
law, Aegis will keep strictly confidential all non-public Information concerning the Company
provided to Aegis. No obligation of confidentiality will apply to Information that: (a) is
in the public domain as of the date hereof or hereafter enters the public domain without
a breach by Aegis, (b) was known or became known by Aegis prior to the Company’s disclosure
thereof to Aegis as demonstrated by the existence of its written records, (c) becomes known
to Aegis from a source other than the Company which information is not provided by the breach
of an obligation of confidentiality owed to the Company, (d) is disclosed by the Company
to a third party without restrictions on its disclosure or (e) is independently developed
by Aegis as demonstrated by its written records. For the avoidance of doubt, except as otherwise
provided herein, all information which is not publicly available relating to the Company’s
proprietary technology is proprietary and confidential.
15. No
Third Party Beneficiaries; No Fiduciary Obligations. This placement agent agreement
does not create, and shall not be construed as creating, rights enforceable by any person
or entity not a party hereto, except those entitled hereto by virtue of the indemnification
provisions hereof. The Company acknowledges and agrees that: (i) Aegis is not and shall not
be construed as a fiduciary of the Company and shall have no duties or liabilities to the
equity holders or the creditors of the Company or any other person or entity by virtue of
this placement agent agreement or the retention of Aegis hereunder, all of which are hereby
expressly waived; and (ii) Aegis is a full service securities firm engaged in a wide range
of businesses and from time to time, in the ordinary course of its business, Aegis or its
affiliates may hold long or short positions and trade or otherwise effect transactions for
its own account or the account of its customers in debt or equity securities or loans of
the companies which may be the subject of the transactions contemplated by this placement
agent agreement. During the course of Aegis’s engagement with the Company, Aegis may
have in its possession material, non-public information regarding other companies that could
potentially be relevant to the Company or the transactions contemplated herein but which
cannot be shared due to an obligation of confidence to such other companies.
16. Indemnification,
Advancement & Contribution.
16.1.
Indemnification. The Company agrees to indemnify and hold harmless Aegis, its affiliates and each person controlling Aegis
(within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of Aegis, its affiliates
and each such controlling person (Aegis, and each such entity or person hereafter is referred to as an “Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of counsel for the
Indemnified Persons) (collectively, the “Expenses”) and agrees to advance payment of such Expenses as they
are incurred by an Indemnified Person in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified
Person is a party thereto, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained
in (A) the Registration Statement, Prospectus or any other offering documents (as from time to time each may be amended and supplemented),
(B) any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the
Placement, including any “road show” or investor presentations made to investors by the Company (whether in person or electronically),
or (C) any application or other document or written communication (collectively called “application”) executed by the Company
or based upon written information furnished by the Company in any jurisdiction in order to qualify the Securities under the securities
laws thereof or to file for an exemption from such requirement or filed with the Commission, any state securities commission or agency,
any national securities exchange; or (ii) the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, unless such
statement or omission was made in reliance upon, and in conformity with, information provided to the Company by Aegis in writing specifically
for use in the Registration Statement, Prospectus or any other offering documents with respect which or resulting from conduct by Aegis
or another Indemnified Party, as to which Aegis shall indemnify and hold harmless the Company, its officers, directors and controlling
parties in the manner set forth in this Section 20. The Company also agrees to reimburse and advance each Indemnified Person for
all Expenses as they are incurred in connection with such Indemnified Person’s enforcement of his or its rights under this Section
20.
16.2.
Procedure. Upon receipt by an Indemnified Person of actual notice of an action against such Indemnified Person with respect
to which indemnity may reasonably be expected to be sought under this Section 20, such Indemnified Person shall promptly notify
the Company in writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any
obligation or liability which the Company may have on account of this Section 20 or otherwise to such Indemnified Person. The Company
shall, if requested by Aegis, assume the defense of any such action (including the employment of counsel designated by Aegis and reasonably
satisfactory to the Company). Any Indemnified Person shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the
Company has failed promptly to assume the defense and employ separate counsel reasonably acceptable to Aegis for the benefit of Aegis
and the other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is
an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel designated by and engaged by the Company
for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or
proposed to be represented by such counsel, in which event the Company shall pay the reasonable fees and expenses of one counsel, plus
local counsel, for all Indemnified Parties, which counsel shall, if Aegis is a defendant, be designated by Aegis. The Company shall not
be liable for any settlement of any action effected without its written consent (which shall not be unreasonably withheld). In addition,
the Company shall not, without the prior written consent of Aegis, settle, compromise or consent to the entry of any judgment in or otherwise
seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may
be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination
(i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising
out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification
and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course
of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy
each and every Liability and Expense as it is incurred (and in no event later than 30 Calendar Days following the date of any invoice
therefore).
16.3.
Contribution. In the event that a court of competent jurisdiction makes a finding, final beyond right of review, that indemnity
is unavailable to an Indemnified Person, the Company shall contribute to the Liabilities and Expenses paid or payable by such Indemnified
Person in such proportion as is appropriate to reflect (i) the relative benefits to the Company, on the one hand, and to Aegis and any
other Indemnified Person, on the other hand, of the matters contemplated by this Section 20 or (ii) if the allocation provided by
the immediately preceding clause is not permitted by applicable law, not only such relative benefits but also the relative fault of the
Company, on the one hand, and Aegis and any other Indemnified Person, on the other hand, in connection with the matters as to which such
Liabilities or Expenses relate, as well as any other relevant equitable considerations; provided that in no event shall the Company contribute
less than the amount necessary to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses
in excess of the amount of commissions and non-accountable expense allowance actually received by Aegis in the Placement. The relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or Aegis on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Company and Aegis agree that it would not be just and equitable if contributions pursuant to this subsection 20.3
were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to above in this subsection 20.3. For purposes of this paragraph, the relative benefits to the Company, on the one hand,
and to Aegis on the other hand, of the matters contemplated by this Section 20 shall be deemed to be in the same proportion as:
(a) the total value received by the Company in the Placement, whether or not such Placement is consummated, bears to (b) the commissions
paid to Aegis under the Placement Agent Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation within
the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
16.4.
Limitation. The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified
Person pursuant to this placement agent agreement, the transactions contemplated thereby or any Indemnified Person’s actions or
inactions in connection with any such advice, services or transactions, except to the extent that a court of competent jurisdiction has
made a finding that Liabilities (and related Expenses) of the Company have resulted exclusively from such Indemnified Person’s
gross negligence or willful misconduct in connection with any such advice, actions, inactions or services.
17. Equitable
Remedies. Each party to this placement agent agreement acknowledges and agrees that
(a) a breach or threatened breach by the Company of any of its obligations under Section
8 or the exclusivity provisions of Section 1 would give rise to irreparable harm
to Aegis for which monetary damages would not be an adequate remedy and (b) if a breach or
a threatened breach by the Company of any such obligations occurs, Aegis will, in addition
to any and all other rights and remedies that may be available to such party at law, at equity,
or otherwise in respect of such breach, be entitled to equitable relief, including a temporary
restraining order, an injunction, specific performance of the terms of Section 8 or
the exclusivity provisions of Section 1, as applicable, and any other relief that may
be available from a court of competent jurisdiction, without any requirement to (i) post
a bond or other security, or (ii) prove actual damages or that monetary damages will not
afford an adequate remedy. Each party to this placement agent agreement agrees that such
party shall not oppose or otherwise challenge the existence of irreparable harm, the appropriateness
of equitable relief or the entry by a court of competent jurisdiction of an order granting
equitable relief, in either case, consistent with the terms of this Section 21.
18. Governing
Law; Venue. This placement agent agreement will be deemed to have been made and delivered
in the State of New York, USA, and both the binding provisions of this placement agent agreement
and the transactions contemplated hereby will be governed as to validity, interpretation,
construction, effect and in all other respects by the internal laws of the State of New York,
without regard to the conflict of laws principles thereof. Each of Aegis and the Company:
(i) agrees that any legal suit, action or proceeding arising out of or relating to this placement
agent agreement and/or the transactions contemplated hereby will be instituted exclusively
in the courts located in the Borough of Manhattan, City of New York, County of New York,
State of New York (ii) waives any objection which it may have or hereafter to the venue of
any such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of
the courts located in the City of New York, County of New York and State of New York, in
any such suit, action or proceeding. Each of Aegis and the Company further agrees to accept
and acknowledge service of any and all process which may be served in any such suit, action
or proceeding in such courts and agrees that service of process upon the Company mailed by
certified mail to the Company’s address will be deemed in every respect effective service
of process upon the Company, in any such suit, action or proceeding, and service of process
upon Aegis mailed by certified mail to Aegis’s address will be deemed in every respect
effective service process upon Aegis, in any such suit, action or proceeding. Notwithstanding
any provision of this placement agent agreement to the contrary, the Company agrees that
neither Aegis nor its affiliates, and the respective officers, directors, employees, agents
and representatives of Aegis, its affiliates and each other person, if any, controlling Aegis
or any of its affiliates, will have any liability (whether direct or indirect, in contract
or tort or otherwise) to the Company for or in connection with the engagement and transaction
described herein except for any such liability for losses, claims, damages or liabilities
incurred by the Company that are finally judicially determined to have resulted from the
bad faith or gross negligence of such individuals or entities. Aegis will act under this
placement agent agreement as an independent contractor with duties to the Company.
19. Miscellaneous.
The Company represents and warrants that it has all required power and authority to enter
into and carry out the terms and provisions of this placement agent agreement and the execution,
delivery and performance of this placement agent agreement does not breach or conflict with
any agreement, document or instrument to which it is a party or bound. The binding provisions
of this placement agent agreement are legally binding upon and inure to the benefit of both
the Company and Aegis and their respective assigns, successors, and legal representatives.
If any provision of this placement agent agreement is determined to be invalid or unenforceable
in any respect, such determination will not affect such provision in any other respect, and
the remainder of the placement agent agreement shall remain in full force and effect. This
placement agent agreement may be executed in counterparts (including electronic counterparts),
each of which shall be deemed an original but all of which together shall constitute one
and the same instrument. The undersigned hereby consents to receipt of this placement agent
agreement in electronic form and understands and agrees that this placement agent agreement
may be signed electronically. Signatures to this placement agent agreement transmitted in
electronic form will have the same effect as physical delivery of a paper document bearing
the original signature, and if any signature is delivered electronically evidencing an intent
to sign this placement agent agreement, such electronic mail or other electronic transmission
shall create a valid and binding obligation of the undersigned with the same force and effect
as if such signature were an original. Execution and delivery of this placement agent agreement
by electronic mail or other electronic transmission is legal, valid and binding for all purposes.
If
you are in agreement with the foregoing, please sign and return to us one copy of this placement agent agreement. This placement agent
agreement may be executed in counterparts (including facsimile or .pdf counterparts), each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
[Signature
Page of DYAI Registered Direct and PIPE Offering Placement Agent Agreement Follows]
[Signature
Page of DYAI Registered Direct and PIPE Offering Placement Agent Agreement]
Very truly yours,
Aegis Capital Corp.
By:
/s/
Robert Eide
Name:
Robert
Eide
Title:
Chief
Executive Officer
AGREED
AND ACCEPTED:
The
foregoing accurately sets forth our understanding and agreement with respect to the matters set forth herein.
Dyadic
International, Inc.
By:
/s/
Mark Emalfarb
Name:
Mark
Emalfarb
Title:
Chief
Executive Officer
EX-99.1
EX-99.1
Filename: ex99-1.htm · Sequence: 8
Exhibit 99.1
Dyadic
International, Inc. Secures $2.9 Million Through Registered Direct Offering and Concurrent Private Placement
JUPITER,
FLA., August 13, 2026 -- Dyadic International, Inc. (NASDAQ: DYAI) (the “Company”), d/b/a Dyadic Applied BioSolutions,
a biotechnology company developing recombinant protein solutions across the life sciences, food and nutrition, bio-industrial and biopharmaceutical
markets, today announced definitive agreements with an institutional investor for the purchase and sale of shares of Common Stock in
a registered direct offering with a concurrent private placement of warrants to the same investor. Aggregate gross proceeds to the Company
from both transactions are expected to be approximately $2.9 million.
The
offering price per share of Common Stock is $0.795 and per Warrant is $0.005. The transactions consisted of the sale of 3,625,000 shares
of Common Stock in the registered direct offering and Common Warrants to purchase 3,625,000 shares of Common Stock in the private placement
with an exercise price of $0.84 per share.
Aggregate
gross proceeds to the Company are expected to be approximately $2.9 million. The transactions are expected to close on or about August
14, 2026, subject to the satisfaction of customary closing conditions. The Company expects to use the net proceeds from the offerings,
together with its existing cash, cash equivalents, restricted cash and investment grade securities, including accrued, for general corporate
purposes and working capital.
Aegis
Capital Corp. is acting as exclusive placement agent for the offerings.
The
registered direct offering is being made pursuant to an effective shelf registration statement on Form S-3 (No. 333-273829) previously
filed with the U.S. Securities and Exchange Commission (“SEC”) and declared effective by the SEC on August 25, 2023. A final
prospectus supplement and accompanying prospectus describing the terms of the proposed offering will be filed with the SEC and will be
available on the SEC’s website located at www.sec.gov. Electronic copies of the final prospectus supplement and the accompanying
prospectus may be obtained, when available, by contacting Aegis Capital Corp., Attention: Syndicate Department, 1345 Avenue of the Americas,
27th floor, New York, NY 10105, by email at syndicate@aegiscap.com, or by telephone at +1 (212) 813-1010.
The
offer and sale of the securities in the private placement are being made in a transaction not involving a public offering and have not
been registered under the Securities Act of 1933, as amended (the “Securities Act”), or applicable state securities laws.
Accordingly, the securities may not be reoffered or resold in the United States except pursuant to an effective registration statement
or an applicable exemption from the registration requirements of the Securities Act and such applicable state securities laws. The securities
were offered only to accredited investors. Pursuant to a registration rights agreement with the investors, the Company has agreed to
file one or more registration statements with the SEC covering the resale of the Common Stock and the Shares issuable upon exercise of
the pre-funded warrants and warrants.
This
press release is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such state or jurisdiction.
About
Dyadic International, Inc.
Dyadic
Applied BioSolutions is a global biotechnology company that aims to develop and commercialize scalable, non-animal protein production
platforms to meet growing global demand across the life sciences, food and nutrition, and bio-industrial markets. These high-value proteins
are designed to enable customers to develop more efficient, scalable and sustainable products. Dyadic’s proprietary Dapibus™
and C1 expression systems support rapid, cost-effective and flexible manufacturing.
Forward-Looking
Statements
The
foregoing material may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934, each as amended, including statements regarding the completion and timing of
the registered direct offering and concurrent private placement, the satisfaction of customary closing conditions related to the registered
direct offering and concurrent private placement, the proceeds that the Company expects to receive from the registered direct offering
and concurrent private placement, and the intended use of proceeds from the registered direct offering and concurrent private placement.
Forward-looking statements include all statements that do not relate solely to historical or current facts, including without limitation
statements regarding the Company’s product development and business prospects, and can be identified by the use of words such as
“may,” “will,” “expect,” “project,” “estimate,” “anticipate,”
“plan,” “believe,” “potential,” “should,” “continue” or the negative versions
of those words or other comparable words. Forward-looking statements are not guarantees of future actions or performance. These forward-looking
statements are based on information currently available to the Company and its current plans or expectations and are subject to a number
of risks and uncertainties that could significantly affect current plans. Should one or more of these risks or uncertainties materialize,
or the underlying assumptions prove incorrect, actual results may differ significantly from those anticipated, believed, estimated, expected,
intended, or planned. Although the Company believes that the expectations reflected in the forward-looking statements are reasonable,
the Company cannot guarantee future results, performance, or achievements. Except as required by applicable law, including the security
laws of the United States, the Company does not intend to update any of the forward-looking statements to conform these statements to
actual results.
Ping
Rawson
Chief Financial Officer
Phone: (561) 743-8333
Email: ir@dyadic.com
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