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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Sections 13
or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of
earliest event reported): December 29, 2023
Fortress Biotech, Inc.
(Exact name of registrant as specified in its
charter)
Delaware
(State or other jurisdiction
of incorporation) |
|
001-35366
(Commission File Number) |
|
20-5157386
(I.R.S. Employer
Identification No.) |
1111
Kane Concourse, Suite
301
Bay
Harbor Islands, FL 33154
(Address of principal
executive offices)
Registrant’s telephone number, including
area code: (781) 652-4500
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the obligation of the registrant under any of the following provisions:
| ¨ | Written
communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter)
|
¨ |
Emerging growth company |
|
|
|
|
¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act: |
Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
Common Stock |
FBIO |
Nasdaq Capital Market |
9.375% Series A Cumulative Redeemable Perpetual Preferred Stock |
FBIOP |
Nasdaq Capital Market |
| Item 1.01 | Entry into a Material Definitive Agreement. |
On December 29, 2023,
Fortress Biotech, Inc. (the “Company”) offered and sold an aggregate of 3,303,305 units (the “Units”),
each consisting of one share of common stock of the Company, $0.001 par value per share (the “Common Stock”), and one
warrant to purchase one share of Common Stock (the “Warrants,” and, together with the Common Stock and the Units, the
“Securities”), at a price per Unit of $3.33 (the “Offering”). The Securities were sold pursuant
to the Company’s effective registration statement on Form S-3 (Registration No. 333-258145), which was declared effective by the
SEC on July 30, 2021, the base prospectus included therein and a prospectus supplement related to the Offering dated December 29, 2023,
and a Securities Purchase Agreement (the “Securities Purchase Agreement”), dated November 10, 2023, between the Company
and the purchasers party thereto.
The Warrants have an
exercise price of $3.21 per share of Common Stock (subject to customary adjustments as set forth in the Warrants), are exercisable upon
issuance and will expire five years from the date of issuance. The Warrants contain customary anti-dilution adjustments to the exercise
price, including for share splits, share dividends, rights offerings and pro rata distributions.
The Offering closed on
January 3, 2024. The Company expects to receive approximately $11.0 million in gross proceeds from the Offering, before deducting placement
agency fees and estimated offering expenses. The Company intends to use the net proceeds from the Offering for its operations, including,
but not limited to, general corporate purposes, which may include research and development expenditures, clinical trial expenditures,
license or acquisition of new products and working capital.
Roth Capital Partners,
LLC (“Roth”) acted as the exclusive placement agent in connection with the Offering, which was a “reasonable
best efforts” offering pursuant to a Placement Agency Agreement, dated as of December 29, 2023, between the Company and Roth
(the “Placement Agency Agreement”). Pursuant to the Placement Agency Agreement, the Company paid a commission equal to
7.0% of the aggregate gross proceeds raised from the sale of the securities placed by Roth in connection with this Offering, and reimbursed
Roth for certain reasonable out of pocket expenses incurred in connection with the Offering.
The foregoing descriptions
of the Warrant, the Securities Purchase Agreement and the Placement Agency Agreement are subject to, and qualified in their entirety by,
such documents (or forms thereof), which are attached hereto as Exhibits 4.1, 10.1 and 10.2, respectively, and incorporated herein by
reference.
A copy of the opinion
of McGuireWoods LLP relating to the validity of the issuance and sale of the Securities is attached as Exhibit 5.1 hereto.
On December 29, 2023,
the Company issued a press release announcing the pricing of the Offering. The full text of the press release is attached as Exhibit 99.1
to this Current Report on Form 8-K and incorporated herein by reference.
On January 3, 2024, the
Company issued a press release announcing the closing of the Offering. The full text of the press release is attached as Exhibit 99.2
to this Current Report on Form 8-K and incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
The following exhibits are filed herewith.
Exhibit Number |
|
Description |
4.1 |
|
Form of Warrant |
5.1 |
|
Opinion of McGuireWoods LLP |
10.1 |
|
Form of Securities Purchase Agreement, dated December 29, 2023, by and among the Company and the purchasers party thereto |
10.2 |
|
Placement Agency Agreement, dated December 29, 2023, by and between the Company and Roth Capital Partners, LLC |
23.1 |
|
Consent of McGuireWoods LLP (included in Exhibit 5.1) |
99.1 |
|
Press Release (pricing), dated December 29, 2023 |
99.2 |
|
Press Release (closing), dated January 3, 2024 |
104 |
|
Cover Page Interactive Data File (embedded within Inline XBRL document) |
Cautionary Note Regarding Forward-Looking
Statements
This report 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,
as amended. As used below and throughout this report, the words “we”, “us” and “our” may refer to
Fortress individually or together with one or more partner companies, as dictated by context. Such statements include, but are not limited
to, any statements relating to the expectations regarding the use of proceeds from the offering, as well as our growth strategy and product
development programs, ability to generate shareholder value, ability of our products to receive necessary approvals, including FDA approval,
ability of our products and therapies to help patients and any other statements that are not historical facts. Forward-looking statements
are based on management’s current expectations and are subject to risks and uncertainties that could negatively affect our business,
operating results, financial condition and stock price. Factors that could cause actual results to differ materially from those currently
anticipated include: market and other conditions; risks relating to our growth strategy; our ability to obtain, perform under and maintain
financing and strategic agreements and relationships, including the entry into any specific corporate development transactions; our need
for substantial additional funds and uncertainties relating to financings; uncertainties related to our ability to identify, acquire,
close and integrate product candidates successfully and on a timely basis; our ability to attract, integrate and retain key personnel;
the early stage of products under development; risks relating to the results of research and development activities; uncertainties relating
to preclinical and clinical testing; our ability to secure and maintain third-party manufacturing, marketing and distribution of our and
our partner companies’ products and product candidates; government regulation; patent and intellectual property matters; competition;
as well as other risks described in our SEC filings. We expressly disclaim any obligation or undertaking to release publicly any updates
or revisions to any forward-looking statements contained herein to reflect any change in our expectations or any changes in events, conditions
or circumstances on which any such statement is based, except as may be required by law, and we claim the protection of the safe harbor
for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
|
Fortress Biotech, Inc. |
|
(Registrant) |
|
|
Date: January 3, 2024 |
|
|
|
|
By: |
/s/ Lindsay A. Rosenwald, M.D. |
|
|
Lindsay A. Rosenwald, M.D. |
|
|
Chairman, President and Chief Executive Officer |
Exhibit 4.1
COMMON STOCK PURCHASE WARRANT
Fortress
biotech, inc.
Warrant Shares: _______ |
Initial Exercise Date: |
January 3, 2024 |
|
Issue Date: |
January 3, 2029 |
THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received, _____________ or its registered 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
January 3, 2024 (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on January 3, 2029
(the “Termination Date”) but not thereafter, to subscribe for and purchase from Fortress Biotech, Inc., a Delaware
corporation (the “Company”), up to ______ shares of Common Stock (as subject to adjustment hereunder, the “Warrant
Shares”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined
in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 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.
“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 the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in
good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the reasonable
fees and expenses of which shall be paid by the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any
day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close; provided, however,
for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at
home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions
or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds
transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers
on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“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.
“Purchase
Agreement” means the securities purchase agreement, dated as of December 28, 2023, among the Company and the purchasers signatory
thereto, as amended, modified or supplemented from time to time in accordance with its.
“Registration
Statement” means the Company’s registration statement on Form S-3 (File No. 333-258145).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“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.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“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 or the New York
Stock Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Pl. Woodmere,
NY 11598 and an email address of info@vstocktransfer.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if 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 the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the reasonable fees and expenses of which shall be paid by the Company.
Section 2. Exercise.
a) Exercise
of Warrant. Subject to the provisions of Section 2(e) herein, exercise of the purchase rights represented by this Warrant may be
made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by
delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form
annexed hereto as Annex A (the “Notice of Exercise”), and, unless the cashless exercise procedure
specified in Section 2(c) below is specified in the applicable Notice of Exercise, delivery within the Standard Settlement Period of
the aggregate Exercise Price of the Warrant Shares specified in the applicable Notice of Exercise as specified in this Section 2(a).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as
defined in Section 2(d)(i) herein) following the date of the Notice 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 of immediately available funds
or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is
specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion
guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the
contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of
the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this
Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered
to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount
equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of
Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within
one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree
that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number
of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $3.21, subject to adjustment
hereunder (the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof, after the Initial Exercise Date and on or before the Termination
Date, 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, 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)
both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant
to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation
NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the
Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal
Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable
Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered
within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day)
pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise
is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular
trading hours” on such Trading Day;
(B) = the Exercise
Price 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.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
d)
Mechanics of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the
Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The
Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a
participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares
to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical
delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the
number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the
Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days 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) two (2) Trading Days and (ii)
the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company
fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date,
the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject
to such exercise (based on the VWAP of shares of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading
Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after
such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to
maintain a transfer agent 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 shares of Common Stock as in effect on the date of delivery
of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2(d)(i) by the Warrant Share Delivery Date (subject to receipt of the aggregate exercise price for the applicable exercise
(other than in the case of a cashless exercise)), then the Holder will have the right to rescind such exercise; provided, however, that
the Holder shall be required to return any Warrant Shares subject to any such rescinded exercise notice concurrently with the return
to Holder of the aggregate Exercise Price paid to the Company for such Warrant Shares and the restoration of Holder’s right to
acquire such Warrant Shares pursuant to this Warrant (including, issuance of a replacement warrant certificate evidencing such restored
right).
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder,
if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of
Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date (subject to receipt of the aggregate
exercise price for the applicable exercise (other than in the case of a cashless exercise) and other than any such failure that is
solely due to any action of the Holder with respect to such exercise), and if after such date the Holder is required by its broker
to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such
exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in
connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was
executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares
for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number
of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations
hereunder. For example, if the Holder purchases shares of 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.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share 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.
vi.
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 Annex B duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to
exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any
other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons,
“Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined
below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its
Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with
respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable
upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates
or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the
Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties.
Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in
accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the
Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange
Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the
limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the
Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together
with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the
Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination
(including any determination as to group status pursuant to the next sentence). 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(e), in determining the number of outstanding shares of Common Stock, a Holder
may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual
report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent
written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the
written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number
of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its
Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 4.99% (or, upon election by the Holder prior to the issuance of this
Warrant, 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(e), 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(e) shall continue to apply. Any increase in the
Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms
of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to
such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on its 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(a) shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time that this Warrant is outstanding
the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property
pro rata to all (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).
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any
dividend or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) of holders of shares of
Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder
shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder
had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on
exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is
taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to
be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder's right
to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall
not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a
result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder
until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). 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.
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, 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 more than 50% of the
outstanding Common Stock or more than 50% voting power of the common equity of the Company, (iv) the Company, directly or
indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock
or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities,
cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share
purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off,
merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50%
of the outstanding Common Stock or more than 50% of the voting power of the common equity of the Company (each a
“Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right
to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving
corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such
Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior
to such Fundamental Transaction (without regard to any limitation in Section 2(e)). 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 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 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 determined as of the day of consummation of the
applicable 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 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 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(e) 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 Business Days of 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(d) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior
to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a
security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which
is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to
the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the
exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price
hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such
Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise
price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such
Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such
Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from and
after the occurrence or consummation of such Fundamental Transaction, 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(e) 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.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a
given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the
Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (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 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 the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or
in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent
that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of
the 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.
Section 4. Transfer
of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein
to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned
this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date
on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned
in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be
divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial
issuance date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant
thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat
the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except
as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company
be required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to 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.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
d)
Authorized Shares.
The Company
covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The
Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may
be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by
this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in
accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges
created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with
such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Jurisdiction.
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. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or
the Holder or, their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New York. The Company and, by accepting this Warrant,
the Holder each 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. The Company and, by accepting this Warrant, the Holder each 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 it 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 the Company or the Holder 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.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other
provision of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any provision of this
Warrant, 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.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation, any
Notice of Exercise, shall be in writing and delivered personally, by email, or sent by a nationally recognized overnight courier
service, addressed to the Company, at 1111 Kane Concourse, Suite 301 Bay Harbor Islands, FL, 33154, Attention: General Counsel,
email address: legal@fortressbiotech.com, or such other email address or address as the Company may specify for such purposes by
notice to the Holder. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in
writing and delivered personally, by email, or sent by a nationally recognized overnight courier service addressed to the Holder at
the email address or address of the 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 email at the email address set forth in this Section 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 email at the email address set
forth in this Section on a 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 by the Company
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.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company
and the Holder.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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Annex A
NOTICE OF EXERCISE
To: fortress
biotech, 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) originally issued on January 3, 2024, and tenders herewith payment of the exercise price in full, together
with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ] in lawful money
of the United States; or
[ ] if permitted
the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the
following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: ________________________________________________________________________
Signature of Authorized Signatory of Investing
Entity: _________________________________________________
Name of Authorized Signatory: ___________________________________________________________________
Title of Authorized Signatory: ____________________________________________________________________
Date: ________________________________________________________________________________________
Annex B
ASSIGNMENT FORM
(To assign the foregoing
Warrant originally issued on January 3, 2024, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the
foregoing Warrant and all rights evidenced thereby are hereby assigned to
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Exhibit 5.1
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McGuireWoods LLP
201 North Tryon Street
Suite 3000
Charlotte, NC 28202-2146
Phone: 704.343.2000
Fax: 704.343.2300
www.mcguirewoods.com |
January 3, 2024
Fortress Biotech, Inc.
1111 Kane Concourse, Suite 301
Bay Harbor Islands, FL 33154
RE: Public Offering of Fortress Biotech, Inc.
Ladies and Gentlemen:
We have acted as counsel to
Fortress Biotech, Inc., a Delaware corporation (the “Company”), in connection with its filing on January 2, 2024 with
the Securities and Exchange Commission (the “Commission”) of a prospectus supplement, dated December 29, 2023 (the
“Prospectus Supplement”), relating to the registered offering (the “Offering”) by the Company of
3,303,305 units, consisting of one share of the Company’s Common Stock, par value $0.001 per share (the “Common Stock,”
and such shares, the “Shares”), and one warrant to purchase one Share of Common Stock (the “Warrants”)
(each such unit, a “Unit” and, collectively with the Shares and the Warrants, the “Securities”),
constituting together with the base prospectus dated July 30, 2021 (the “Base Prospectus”) a part of the Company’s
Registration Statement on Form S-3 (File No. 333-258145) (the “Registration Statement”), as filed by the Company with
the Commission under the Securities Act of 1933, as amended (the “Securities Act”), which Registration Statement was
declared effective on July 30, 2021. The Securities were sold pursuant to the Prospectus and to certain investors pursuant to a Securities
Purchase Agreement, dated December 29, 2023, by and the Company and certain purchasers thereto (the “Securities Purchase Agreement”).
The term “Shares”
includes any additional shares of Common Stock or shares of Common Stock underlying Warrants. The shares underlying the Warrants are referred
to herein collectively as the “Warrant Shares.” This opinion letter is being furnished in accordance with the requirements
of Item 16 of Form S-3 and Item 601(b)(5)(i) of Regulation S-K promulgated under the Securities Act.
Documents Reviewed
In connection with this opinion
letter, we have examined the following documents:
(a)
the Registration Statement, including the exhibits being filed therewith;
(b)
the Prospectus Supplement;
(c)
the base prospectus contained in the Registration Statement (together with the Prospectus Supplement, the “Prospectus”);
(d)
the form of Purchase Agreement; and
(e)
the form of Warrant.
McGuireWoods LLP | www.mcguirewoods.com
Atlanta | Austin | Baltimore | Charlotte | Charlottesville
| Chicago | Dallas | Houston | Jacksonville | London | Los Angeles - Century City
Los Angeles - Downtown | New York | Norfolk | Pittsburgh
| Raleigh | Richmond | San Francisco | Tysons | Washington, D.C.
Fortress Biotech, Inc.
January 3, 2024
Page 2
As used herein, the Purchase
Agreement and the Warrant are referred to, collectively, as the “Subject Documents.”
In addition, we have examined
and relied upon the following:
(i)
a certificate from the corporate secretary of the Company certifying as to (A) true and correct copies of the certificate of incorporation
and bylaws of the Company, each as in effect the date hereof and as amended, supplemented or modified to date, and (B) the resolutions
of the Board of Directors of the Company authorizing (1) the filing of the Prospectus Supplement by the Company and (2) the issuance of
the Securities by the Company, subject to (x) specific further authorization for the issuance, execution, delivery and performance by
proper action of the Company’s Board of Directors or a pricing committee thereof (the “Authorizing Resolutions”)
with respect to such Securities and (y) the other qualifications set forth therein;
(ii)
a certificate dated December 29, 2023 issued by the Secretary of State of the State of Delaware, attesting to the corporate status
of the Company in the State of Delaware; and
(iii)
originals, or copies identified to our satisfaction as being true copies, of such other records, documents and instruments as we
have deemed necessary for the purposes of this opinion letter.
“Applicable Law”
means the Delaware General Corporation Law and the laws of the State of New York.
Assumptions Underlying Our Opinions
For all purposes of the opinions
expressed herein, we have assumed, without independent investigation, the following:
(a)
Factual Matters. To the extent that we have reviewed and relied upon (i) certificates of the Company or authorized representatives
thereof, (ii) representations of the Company set forth in the Subject Documents (if any) and (iii) certificates and assurances from public
officials, all of such certificates, representations and assurances are accurate with regard to factual matters.
(b)
Signatures; Legal Capacity. The signatures of individuals who have signed or will sign the Subject Documents are genuine.
All individuals who have signed or will sign the Subject Documents have the legal capacity to execute such Subject Documents.
(c)
Authentic and Conforming Documents. All documents submitted to us as originals are authentic, complete and accurate, and
all documents submitted to us as copies conform to authentic original documents.
(d) Organizational
Status, Power and Authority of Certain Parties. All parties to each of the Subject Documents are or will be, as of the date the
applicable Subject Document is executed and delivered, validly existing and in good standing in their respective jurisdictions of
formation, except no such assumption is made as to the Company as of the date hereof, and have or will have, as of the date the
applicable Subject Document is executed and delivered, the capacity and full power and authority to execute, deliver and perform the
applicable Subject Document and the documents required or permitted to be delivered and performed thereunder, except that no such
assumption is made as to the Company as of the date hereof.
Fortress Biotech, Inc.
January 3, 2024
Page 3
(e)
Authorization, Execution and Delivery of the Subject Documents. Each of the Subject Documents and the documents required
or permitted to be delivered thereunder have been or will be, as of the date the applicable Subject Document is executed and delivered,
duly authorized by all necessary corporate, limited liability company, business trust, partnership or other action on the part of the
parties thereto and have been or will be, as of the date the applicable Subject Document is executed and delivered, duly executed and
delivered by such parties, except that no such assumption is made as to the Company as of the date hereof.
(f)
No Mutual Mistake, Amendments, etc. There has not been, and will not be, as of the date each Subject Document is executed
and delivered, any mutual mistake of fact, fraud, duress or undue influence in connection with the issuance of the Shares, the Warrants,
and the Warrant Shares as contemplated by the Registration Statement, the Prospectus and the Subject Documents, as applicable. There are
and will be no oral or written statements or agreements that modify, amend or vary, or purport to modify, amend or vary, any of the terms
of the Subject Documents.
Our Opinions
Based on and subject to the
foregoing and the exclusions, qualifications, limitations and other assumptions set forth in this opinion letter, we are of the opinion
that:
1. The Shares, when
(a) the Shares have been issued and sold as contemplated by the Registration Statement, the Prospectus and the Purchase Agreement, (b)
the Company has received the consideration provided for in the Prospectus and the Purchase Agreement and any applicable definitive purchase
or similar agreement and (c) such consideration for the Shares is not less than the amount specified in the applicable Authorizing Resolutions,
will be validly issued, fully paid and non-assessable;
2. The Underlying
Shares issuable upon exercise of the Warrants, when (a) the Warrants have been issued as contemplated by the Registration Statement, the
Prospectus and the Purchase Agreement and (b) the Warrants have been executed and delivered by the Company and authenticated and countersigned
in accordance with the provisions therein and, when issued upon exercise of the Warrants, upon payment of the applicable exercise price
therefor in accordance with the terms thereof, will be validly issued, fully paid and non-assessable; and
3. The Warrants,
when (a) the Warrants have been issued and sold as contemplated by the Registration Statement, the Prospectus and the Purchase Agreement
and (b) the Warrants have been executed and delivered by the Company in accordance with the provisions therein, will constitute the valid
and binding obligations of the Company, enforceable against the Company in accordance with their terms, under the laws of the State of
New York.
Qualification and Limitation Applicable to
Our Opinions
The opinions set forth above
are subject to the following qualifications and limitations:
(a)
Applicable Law. Our opinions are limited to Applicable Law, and we do not express any opinion concerning any other law.
Fortress Biotech, Inc.
January 3, 2024
Page 4
(b)
Bankruptcy. Our opinions are subject to the effect of any applicable bankruptcy, insolvency (including, without limitation,
laws relating to preferences, fraudulent transfers and equitable subordination), reorganization, moratorium and other similar laws affecting
creditors’ rights generally.
(c)
Equitable Principles. Our opinions are subject to the effect of general principles of equity (regardless of whether considered
in a proceeding in equity or at law), including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing.
Miscellaneous
The foregoing opinions are
being furnished only for the purpose referred to in the second paragraph of this opinion letter. Our opinions are based on statutes, regulations
and administrative and judicial interpretations which are subject to change. We undertake no responsibility to update or supplement these
opinions subsequent to the effective date of the Registration Statement. Headings in this opinion letter are intended for convenience
of reference only and shall not affect its interpretation. We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement, to the incorporation by reference of this opinion letter into any subsequent registration statement on Form S-1
filed by the Company pursuant to Rule 462(b) of the Securities Act, and to the reference to our firm in the Registration Statement under
the caption “Legal Matters.” In giving this consent, we do not admit that we are within the category of persons whose consent
is required by Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
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Very
truly yours, |
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/s/
McGuireWoods LLP |
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McGuireWoods
LLP |
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase
Agreement (this “Agreement”) is dated as
of , 2023, between Fortress Biotech, Inc., a Delaware
corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined below),
the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“Acquiring Person”
shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“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.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the 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.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Private 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.
“Common
Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with
Section 2.2(a) hereof, which Warrants shall be exercisable immediately and have a term of exercise equal to five (5) years from the initial
exercise date, in the form of Exhibit A-1 attached hereto.
“Common
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Common Warrants.
“Company
Counsel” means McGuireWoods LLP, with offices located at 201 North Tryon Street, Suite 3000, Charlotte, NC 28202.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof,
unless otherwise instructed as to an earlier time by the Placement Agent.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant
to any stock or option plan or employee stock purchase plan duly adopted for such purpose, by a majority of the non-employee members
of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services
rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/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 (c) securities issued pursuant to acquisitions, licensing, collaboration or strategic transactions
(including any asset sale, joint venture, sale of the Company or any of its divisions, out-licensing partnership transaction, or any
subscription of equity or equity-linked securities made by the counterparty to, and in connection with, any such transaction) approved
by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the prohibition period in Section 4.11(a) herein, and provided 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.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“FDCA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and the directors and officers
of the Company, in the form of Exhibit B attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per Share
Purchase Price” equals $3.33, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Closing Date, provided
that the purchase price per Pre-Funded Warrant shall be the Per Share Purchase Price minus $0.001.
“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.
“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(hh).
“Placement
Agent” means Roth Capital Partners, LLC.
“Pre-Funded Warrants”
mean, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section
2.2(a) hereof, which Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised in full, in the form of Exhibit
A-2 attached hereto.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Private Subsidiary”
shall mean any of the following entities: (i) Cellvation, Inc.; (ii) Cyprium Therapeutics, Inc.; (iii) Helocyte, Inc.; (iv) Oncogenuity,
Inc.; and (v) Urica Therapeutics, Inc.
“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.
“Prospectus”
means the base prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act, including all information,
documents and exhibits filed with or incorporated by reference into such prospectus supplement, that is filed with the Commission and
delivered by the Company to each Purchaser at the Closing in connection with the Shares, the Warrants and the Warrant Shares.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with Commission file No. 333-258145 which registers the sale of the Securities
to the Purchasers, including the Prospectus and Prospectus Supplement, and all information, documents and exhibits filed with or incorporated
by reference into such registration statement, and includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 462(b)
Registration Statement” means any registration statement prepared by the Company registering additional Securities, which was
filed with the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated by the
Commission pursuant to the Securities Act.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement, but excluding the Warrant Shares.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares and/or Pre-Funded Warrants and Common Warrants
purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds (minus, if applicable, a Purchaser’s aggregate exercise
price of the Pre-Funded Warrants, which amounts shall be paid as and when such Pre-Funded Warrants are exercised for cash).
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York
Stock Exchange, (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Lock-Up Agreement, the Warrants, all exhibits and schedules thereto and hereto and any
other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Pl. Woodmere,
NY 11598 and an email address of info@vstocktransfer.com, and any successor transfer agent of the Company.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.11(b).
“Warrants”
means, collectively, the Common Warrants and the Pre-Funded Warrants.
“Warrant
Shares” means, collectively, the Common Warrant Shares and the Pre-Funded Warrant Shares.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers,
severally and not jointly, agree to purchase, up to an aggregate of $________ of Shares and Common Warrants; provided, however,
that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s
Affiliates, and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) would
beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing
Shares such Purchaser may elect, by so indicating such election prior to their issuance, to purchase Pre-Funded Warrants in lieu of
Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. The
“Beneficial Ownership Limitation” shall be 4.99% (or, with respect to each Purchaser, at the election of such
Purchaser at Closing, 9.99%) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance
of the Shares on the Closing Date. The Company shall deliver to each Purchaser its respective Shares, Pre-Funded Warrants and Common
Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in
Section 2.2 deliverable at the Closing. Each Purchaser’s Subscription Amount as set forth on the signature page hereto
executed by such Purchaser shall be made available for “Delivery Versus Payment” (“DVP”) settlement
with the Company or its designee. The Company shall deliver to each Purchaser its respective Shares and a Common Warrant (and, if
applicable, a Pre-Funded Warrant) as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the
other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in
Sections 2.2 and 2.3, the Closing shall occur at the offices of Company Counsel or such other location as the parties shall mutually
agree take place remotely by electronic transfer of the Closing documentation. Unless otherwise directed by the Placement Agent,
settlement of the Shares shall occur via DVP (i.e., on the Closing Date, the Company shall issue the Shares registered in the
Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent
identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to
the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the
Company). Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of this Agreement by the
Company and an applicable Purchaser, through, and including the time immediately prior to the Closing (the “Pre-Settlement
Period”), such Purchaser sells to any Person all, or any portion, of the 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, such
Pre-Settlement Shares at the Closing, and the Company shall be deemed unconditionally bound to sell such Pre-Settlement Shares to
such Person 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 of such Pre-Settlement Shares hereunder; and provided further that the
Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant by such Purchaser as to
whether or not during the Pre-Settlement Period such Purchaser shall sell any shares of Common Stock to any Person and that any such
decision to sell any shares of Common Stock by such Purchaser shall solely be made at the time such Purchaser elects to effect any
such sale, if any. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise (as defined in the Pre-Funded Warrants)
delivered on or prior to 12:00 p.m. (New York City time) on the Closing Date, which may be delivered at any time after the time of
execution of this Agreement, the Company agrees to deliver the Pre-Funded Warrant Shares subject to such notice(s) by 4:00 p.m. (New
York City time) on the Closing Date and the Closing Date shall be the Warrant Share Delivery Date (as defined in the Pre-Funded
Warrants) for purposes hereunder.
2.2
Deliveries.
(a)
On or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser
the following:
(i)
this Agreement duly executed by the Company;
(ii)
a legal opinion of Company Counsel, directed to the Placement Agent and the Purchasers, in form and substance reasonably acceptable
to the Placement Agent and the Purchasers;
(iii)
subject to the fourth sentence of Section 2.1, the Company’s wire instructions, on Company letterhead and executed by the
Chief Executive Officer or Chief Financial Officer;
(iv)
subject to the fourth sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price (minus the number of shares of Common
Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable), registered in the name of such Purchaser;
(v)
if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of
such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount
applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001, subject
to adjustment therein;
(vi)
a Common Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100% of
the sum of such Purchaser’s Shares and Warrant Shares initially issuable upon exercise of the Pre-Funded Warrants, if applicable,
with an exercise price equal to the Per Share Purchase Price, subject to adjustment therein;
(vii)
the duly executed Lock-Up Agreements; and
(viii)
the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount (less the aggregate exercise price of the Pre-Funded Warrants issuable to such Purchaser
hereunder, if applicable), which shall be made available for DVP settlement with the Company or its designee.
2.3
Closing Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects)
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 in all material respects (or, to the extent representations or warranties are qualified by materiality,
in all respects) as of such date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being
met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein
(unless as of a specific date therein in which case they shall be accurate in all material respects or, to the extent representations
or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser,
makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules
shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained
in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each
Purchaser:
(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company
owns, directly or indirectly, all of the capital stock or other equity interests of each Private Subsidiary free and clear of any Liens,
and all of the issued and outstanding shares of capital stock of each Private Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities
(b)
Organization and Qualification. The Company and each of the Private 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 Private 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 Private Subsidiaries is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case
may be, would not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability
of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial
or otherwise) of the Company and the Private 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”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing
or seeking to revoke, limit or curtail such power and authority or qualification.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which
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 valid and binding obligation of the Company enforceable against the Company in accordance with
its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and
thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Private 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 Private 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 Private Subsidiary debt or otherwise) or other understanding to which the Company or any Private Subsidiary is
a party or by which any property or asset of the Company or any Private 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 Private Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or a Private Subsidiary is bound or affected; except in the case
of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, 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, (iii) the notice
and/or application(s) to each applicable Trading Market for the listing of the Shares and Warrant Shares for trading thereon in the time
and manner required thereby, and (iv) such filings as are required to be made under applicable state securities laws (collectively, the
“Required Approvals”).
(f) Issuance
of the Securities; Registration. 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, free and clear of all Liens imposed
by the Company. The Warrant Shares, when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock
the maximum number of shares of Common Stock issuable pursuant to this Agreement and the Warrants. The Company has prepared and
filed the Registration Statement in conformity in all material respects with the requirements of the Securities Act, which became
effective on July 30, 2021 (the “Effective Date”), including the Prospectus, and such amendments and
supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus 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 Registration Statement
and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and
any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and
will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Prospectus and the Prospectus Supplement and any amendments or
supplements thereto, at the time the Prospectus and the Prospectus Supplement or any amendment or supplement thereto was issued and
at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and
will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The Company was at the time of the filing of
the Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets
the transaction requirements as set forth in General Instruction I.B.1 of Form S-3.
(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g)
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. 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, the
exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act
and/or pursuant to the Company’s at-the-market sales program. 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
a result of the purchase and sale of the Securities and set forth on Schedule 3.1(g), 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 Private Subsidiary, or contracts, commitments, understandings or arrangements by
which the Company or any Private Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock
Equivalents or capital stock of any Private Subsidiary other than pursuant to the terms Cyprium Therapeutics, Inc. 9.375% Cumulative
Redeemable Perpetual Preferred Stock (“Cyprium Preferred Stock”) and Urica Therapeutics, Inc. 8% Cumulative
Redeemable Perpetual Class B Preferred Stock (“Urica Preferred Stock”). The issuance and sale of the Securities
will not obligate the Company or any Private Subsidiary to issue shares of Common Stock or other securities to any Person (other
than the Purchasers). Except as set forth in the SEC Reports with respect to customary adjustments such as reverse stock split,
there are no outstanding securities or instruments of the Company or any Private 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
Private Subsidiary. Except as set forth on Schedule 3.1(g), there there are no outstanding securities or instruments of the
Company or any Private Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any Private Subsidiary is or may become bound to redeem a security of the
Company or such Private Subsidiary other than pursuant to the terms of the Cyprium Preferred Stock and Urica Preferred Stock. 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.
(h)
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 all material
respects 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 except that unaudited
financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position
of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(i)
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(i), (i) there has been no event, occurrence or development
that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any material
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 materially 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 equity compensation 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 or as set forth on Schedule
3.1(i), 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 Private Subsidiaries or their respective businesses, prospects, properties, operations, assets
or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.
(j)
Litigation. Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Private 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) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities or (ii) would, if there were an unfavorable decision, have or reasonably be expected to result in a Material
Adverse Effect (collectively, an “Action”). Neither the Company nor any Private 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. 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. The
Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company
or any Private Subsidiary under the Exchange Act or the Securities Act.
(k) 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 would reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Private
Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such
Private Subsidiary, and neither the Company nor any of its Private Subsidiaries is a party to a collective bargaining agreement, and
the Company and its Private Subsidiaries believe that their relationships with their employees are good. To the knowledge of the
Company, no executive officer of the Company or any Private 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 Private Subsidiaries to any liability with respect to any of the
foregoing matters that would reasonably be expected to result in a Material Adverse Effect. The Company and its Private 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.
(l)
Compliance. Neither the Company nor any Private 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 Private
Subsidiary under), nor has the Company or any Private 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 have or reasonably be expected to result in a Material Adverse Effect.
(m)
Environmental Laws. The Company and its Private 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 be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n)
Regulatory Permits. The Company and the Private Subsidiaries possess all certificates, authorizations and permits issued
by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described
in the SEC Reports, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse
Effect (“Material Permits”), and neither the Company nor any Private Subsidiary has received any notice of proceedings
relating to the revocation or modification of any Material Permit.
(o)
Title to Assets. The Company and the Private Subsidiaries have good and marketable title in fee simple to all real property
owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and
the Private Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Private Subsidiaries
and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance
with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease
by the Company and the Private Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and
the Private Subsidiaries are in compliance, except where the failure to so comply would not reasonably be expected to result in a Material
Adverse Effect.
(p)
Intellectual Property. The Company and the Private 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 reasonable deemed by the Company or such Private Subsidary, as applicable, as currently being 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
have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither the Company
nor any Private Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated
or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement except
as would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Private 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 have or reasonably
be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable
and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Private 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.
(q) Insurance.
The Company and the Private 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 Private Subsidiaries are
engaged, including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription
Amount. Neither the Company nor any Private Subsidiary has any knowledge of any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business without a significant increase in cost.
(r)
Transactions With Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the officers or directors
of the Company or any Private Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Private Subsidiary
is presently a party to any transaction with the Company or any Private 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.
(s) Sarbanes-Oxley;
Internal Accounting Controls. Except as set forth in the SEC Reports, the Company and the Private Subsidiaries are in 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 in the SEC Reports, 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 Private 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 Private 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 Private
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 Private Subsidiaries that have materially affected, or is
reasonably likely to materially affect, the internal control over financial reporting of the Company and its Private
Subsidiaries.
(t)
Certain Fees. Except for fees payable by the Company to the Placement Agent, no brokerage or finder’s fees or commissions
are or will be payable by the Company or any Private 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 that may be due in connection with the transactions contemplated by the Transaction Documents.
(u)
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.
(v)
Registration Rights. Except as set forth on Schedule 3.1(v), no Person has any right to cause the Company to effect
the registration under the Securities Act of any securities of the Company.
(w)
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 terminate, 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 set forth on Schedule 3.1(w), 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. Except as set forth on Schedule 3.1(w),
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.
(x) 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.
(y) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus
Supplement. 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 Private Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules
to this Agreement, is true and correct in all material respects as of the date made and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under
which they were made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or
warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(z)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any
Trading Market on which any of the securities of the Company are listed or designated.
(aa) Solvency.
As used in this subsection (aa), “Company” shall mean the Company and its Private Subsidiaries, but excluding any
Subsidiary that is not a Private Subsidiary. Based on the consolidated financial condition of the Company as of the Closing Date,
after giving effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable
value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s
existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not
constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and
projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the
proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the
cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The
Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt). Except as set forth on Schedule 3.1(aa), the Company has no
knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the
bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule 3.1(aa) sets forth as
of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Private Subsidiary, or for which the
Company or any Private Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x)
any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary
course of business, and other intercompany payables or receivables among the Company and any of its Subsidiaries), (y) all
guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or
should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present
value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither the
Company nor any Private Subsidiary is in default with respect to any Indebtedness.
(bb)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Private Subsidiaries each (i) has made or filed all 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 taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes
for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Private Subsidiary know
of no basis for any such claim.
(cc)
Foreign Corrupt Practices. Neither the Company nor any Private Subsidiary, nor to the knowledge of the Company or any Private
Subsidiary, any agent or other person acting on behalf of the Company or any Private 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 Private 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.
(dd)
Accountants. The Company’s independent registered public accounting firm is KPMG 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 fiscal year ending December
31, 2023.
(ee) 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.
(ff)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the
Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short,
securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities
for any specified term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation,
Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may
negatively impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage
in hedging activities 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.
(gg) 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 Placement Agent in connection
with the placement of the Securities and agreements which have been terminated prior to the date of this Agreement.
(hh)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured,
packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Private Subsidiaries (each such product, a
“Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed,
sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations
relating to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices,
good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports,
except where the failure to be in compliance would not have a Material Adverse Effect. Except as set forth on Schedule 3.1(hh),
there is no pending, completed or, to the Company's knowledge, threatened, in writing, regulatory action (including any lawsuit, arbitration,
or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its Private Subsidiaries
that would have a Material Adverse Effect, and none of the Company or any of its Private Subsidiaries has received any written notice,
warning letter or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure,
registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the
labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of,
or withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes
a clinical hold on any clinical investigation by the Company or any of its Private Subsidiaries, (iv) enjoins production at any facility
of the Company or any of its Private Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with
the Company or any of its Private Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company
or any of its Private Subsidiaries, and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties,
business and operations of the Company have been and are being conducted in all material respects in accordance with all applicable laws,
rules and regulations of the FDA. Except as set forth on Schedule 3.1(hh), the Company has not been informed by the FDA that
the FDA will prohibit the marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed
by the Company.
(ii) Cybersecurity.
(i)(x) There has been no material security breach or other compromise of or relating to any of the Company’s or any Private
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”) except for those as would not cause a Material Adverse Effect,
and (y) the Company and the Private Subsidiaries have not been notified of, and has no knowledge of any event or condition that
would reasonably be expected to result in, any material security breach or other compromise to its IT Systems and Data that would
cause a Material Adverse Effect; (ii) the Company and the Private Subsidiaries are presently in compliance in all material respects
with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or
regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and
to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not,
individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the Private 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 Private
Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(jj)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan 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 Private Subsidiaries or their financial
results or prospects.
(kk)
Office of Foreign Assets Control. Neither the Company nor any Private Subsidiary nor, to the Company's knowledge, any director,
officer, agent, employee or affiliate of the Company or any Private Subsidiary is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(ll)
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.
(mm) Bank
Holding Company Act. Neither the Company nor any of its Private 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 Private 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 Private 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.
(nn)
Money Laundering. The operations of the Company and its Private 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 Private Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company
or any Private Subsidiary, threatened.
3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which
case they shall be accurate as of such date):
(a)
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance
by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which
it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will
constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i)
as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(b)
Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this
representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or
otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the
ordinary course of its business.
(c)
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 Warrants, it will be 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.
(d)
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.
(e)
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the
Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the
Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance
of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary
to such Purchaser.
(f) 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, the Placement Agent, 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.
The Company acknowledges and
agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on
the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any
other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation
of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute
a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or
similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1
Warrant Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement
to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued
pursuant to any such exercise shall be issued free of all legends. If at any time following the date hereof the Registration Statement
(or any subsequent registration statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise available
for the sale or resale of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing that such registration
statement is not then effective and thereafter shall promptly notify such holders when the registration statement is effective again and
available for the sale or resale of the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability
of the Company to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with applicable federal and state securities
laws). The Company shall use reasonable best efforts to keep a registration statement (including the Registration Statement) registering
the issuance or resale of the Warrant Shares effective during the term of the Warrants.
4.2
Furnishing of Information. Until the earliest of the time that (i) no Purchaser owns Securities or (ii) the Common Warrants
have expired, the Company covenants to 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 unless the Company is not then subject
to the reporting requirements of the Exchange Act, in which case this Section 4.2 shall have no further force or effect.
4.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction
unless shareholder approval is obtained before the closing of such subsequent transaction.
4.4
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the
material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents
as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release,
the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of
the Purchasers by the Company or any of its Private Subsidiaries, or any of their respective officers, directors, employees, Affiliates
or agents, including, without limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents.
In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or
similar obligations under any agreement, whether written or oral, between the Company, any of its Private Subsidiaries or any of their
respective officers, directors, agents, employees, Affiliates or agents, including, without limitation, the Placement Agent, 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 (other than the press release described in
the first sentence of this Section 4.4), 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, or if such disclosure is consistent
with the Form 8-K. 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) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission
and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers
with prior notice of such disclosure permitted under this clause (b) and reasonably cooperate with such Purchaser regarding such disclosure.
4.5
Shareholder 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 Private 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
Private Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including, without
limitation, the Placement Agent, or a duty to the Company, any of its Private Subsidiaries or any of their respective officers,
directors, employees, Affiliates or agents, including, without limitation, the Placement Agent, 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 Private 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 in the manner described
in the Prospectus Supplement and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other
than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of
any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC
regulations.
4.8 Indemnification
of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its
directors, officers, 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 material breach of any of the
representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or
(b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any
stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by
the Transaction Documents (unless such action is principally based upon a material breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party
may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by
such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct. If any
action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such
Purchaser Party shall promptly notify the Company in writing, and, the Company shall have the right to assume the defense thereof
with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but the actual and documented 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 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 (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall
not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is
attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by the
Purchaser in this Agreement or in the other Transaction Documents or the fraud, gross negligence or willful misconduct of such
Purchaser Party as determined by a final, non-appealable judgment of a court of competent jurisdiction. The indemnification required
by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as
and when bills are received or are incurred; provided 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 pursuant to this provision. The indemnity agreements contained herein shall be in addition to any cause
of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to
pursuant to law.
4.9
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and
keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the
Company to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing
of Common Stock. The Company hereby agrees to use reasonable best efforts to maintain the listing or quotation of the Common
Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or
quote all of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant
Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other
Trading Market, it will then include in such application all of the Shares and Warrant Shares, and will take such other action as is
necessary to cause all of the Shares and 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 use reasonable best efforts to maintain the eligibility of the Common Stock for electronic
transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely
payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic
transfer.
4.11
Subsequent Equity Sales.
(a)
From the date hereof until 60 days after the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or (ii) file
any registration statement or amendment or supplement thereto, other than the Prospectus Supplement or filing a registration statement
on Form S-8 in connection with any employee benefit plan, or an amendment to the Company’s existing Registration Statement on Form
S-3 (Reg. No. 333-269687) to increase the number of shares registered for resale thereunder by the selling stockholders listed therein.
(b)
From the date hereof until six months after the Closing Date, the Company shall be prohibited from effecting or entering into an
agreement to effect any issuance by the Company or any of its Private 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 or an “at-the-market” facility, whereby the Company may issue securities
at a future determined price regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether
such agreement is subsequently canceled. Notwithstanding the foregoing, the Company may enter into and effect sales from time to time
pursuant to an at–the-market facility beginning sixty (60) days following the Closing Date. 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.
(c) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of (i) an Exempt Issuance, except that no Variable Rate Transaction
shall be an Exempt Issuance, (ii) the filing of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on
Form 8-K that may be deemed to be an amendment or supplement to any existing registration statement or (iii) the filing of any
amendment or supplement to any existing registration statement solely for the purpose of revising any required disclosure in such
registration statement and not for the purpose of increasing the offering size pursuant to any such registration statement.
4.12
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to 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.
4.13
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such
time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial
press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction
and the information included in the Disclosure Schedules (other than as disclosed to its legal and other representatives). 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 Private Subsidiaries,
or any of their respective officers, directors, employees, Affiliates, or agent, including, without limitation, the Placement Agent, after
the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by this Agreement.
4.14 Exercise
Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required of the
Purchasers in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required of
the Purchasers to exercise their 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 Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in
accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.15
Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements
except to extend the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms.
If any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to
seek specific performance of the terms of such Lock-Up Agreement.
ARTICLE V.
MISCELLANEOUS
5.1
Termination. This Agreement may be terminated by (i) 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, or (ii) by the Company, by written notice to the Purchasers, if in either case, if the Closing has not been consummated on or
before the fifth (5th) Trading Day following the date hereof; provided, however, that no such termination will
affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees
(including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise
notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the
Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules 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 attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York
City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered
via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or
later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice
is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached
hereto.
5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares
and Pre-Funded Warrant Shares based on the initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser)
or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment,
modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately
impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely
affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require
the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding
upon each Purchaser and holder of Securities and the Company.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8
No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations, warranties,
and covenants of the Company in Section 3.1 and Section 4 and the representations, warranties, and covenants of the Purchasers in Section
3.2 and Section 4. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns
and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section
4.8 and this Section 5.8.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be
governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or
Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is
improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under
Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or
Proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery
of a “.pdf” format data file (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic
Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), such signature shall be
deemed to have been duly and validly delivered and 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. Notwithstanding
anything to the contrary contained herein, if any Purchaser requests a Warrant with original “wet ink” signatures, the Company
shall deliver such original Warrants without any electronic signatures.
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 validly 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 Warrant, the applicable Purchaser shall be required to return any shares of Common Stock 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 shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant
(including, issuance of a replacement warrant certificate evidencing such restored right).
5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in
the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent
of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers
as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in
any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction
Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the
rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has been represented by its own
separate legal counsel in its review and negotiation of the Transaction Documents. For reasons of administrative convenience only,
each Purchaser and its respective counsel have chosen to communicate with the Company through the legal counsel of 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 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 RELATED TO
THE TRANSACTION DOCUMENTS, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY
ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO fbio
SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: ________________________________________________________
Signature of Authorized Signatory of Purchaser:
_________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory: _________________________________________
Address for Notice to Purchaser:
Address for Delivery of Warrants to Purchaser (if not same as address
for notice):
Subscription Amount: $_________________
Shares: _________________
Pre-Funded Warrant Shares: __________________ Beneficial Ownership
Blocker ¨ 4.99% or ¨ 9.99%
Common Warrant Shares: __________________ Beneficial Ownership Blocker
¨ 4.99% or ¨ 9.99%
EIN Number: ____________________
o
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to
purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the
Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii)
the Closing shall occur on the second (2nd) Trading Day following the date of this Agreement and (iii) any condition to Closing
contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed
of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead
be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate
or the like or purchase price (as applicable) to such other party on the Closing Date.
[SIGNATURE PAGES CONTINUE]
Exhibit A-1
Form of Common Warrant
(see attached).
Exhibit A-2
Form of Pre-funded Warrant
(see attached).
Exhibit B
Form of Lock-up Agreement
(see attached).
Exhibit 10.2
PLACEMENT AGENCY AGREEMENT
December 29, 2023
Roth Capital Partners, LLC
888 San Clemente Drive, Suite 400
Newport Beach, CA 92660
Ladies and Gentlemen:
Introduction. Subject
to the terms and conditions herein (this “Agreement”), Fortress Biotech, Inc., a Delaware corporation (the “Company”),
hereby agrees to sell up to an aggregate of $11,000,005.65 of registered securities of the Company, including, but not limited to, (i)
shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”)
(ii) pre-funded warrants to purchase shares of Common Stock (the “Pre-Funded Warrants” and the shares of Common Stock
issuable upon exercise of the Pre-Funded Warrants, the “Pre-Funded Warrant Shares”), (iii) Common Stock purchase warrants
to purchase shares of Common Stock (the “Common Warrants”, together with the Pre-Funded Warrants, the “Warrants”
and the shares of Common Stock issuable upon exercise of the Common Warrants, the “Common Warrant Shares”, together
with the Pre-Funded Warrant Shares, the “Warrant Shares” and, collectively with the Shares and Warrants, the “Securities”)
directly to various investors (each, an “Investor” and, collectively, the “Investors”) through Roth Capital
Partners, LLC (the “Placement Agent”) as placement agent. The documents executed and delivered by the Company and the
Investors in connection with the Offering (as defined below), including, without limitation, a securities purchase agreement (the “Purchase
Agreement”), shall be collectively referred to herein as the “Transaction Documents.” The purchase price
to the Investors for each Share and accompanying Common Warrant is $3.33 and the purchase price to the Investors for each Pre-Funded Warrant
and accompanying Common Warrant is $3.3299. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers
on its behalf in connection with the Offering.
The Company hereby confirms
its agreement with the Placement Agent as follows:
Section 1. Agreement to Act as Placement
Agent.
(a) On
the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and
conditions of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the offering and sale by
the Company of the Securities pursuant to the Company's registration statement on Form S-3 (File No. 333-258145) (the
“Registration Statement”), with the terms of such offering (the “Offering”) to be subject to
market conditions and negotiations between the Company, the Placement Agent and the prospective Investors. The Placement Agent will
act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful
placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or
any of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own
account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal.
The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Securities and the
Company shall have the sole right to accept offers to purchase Securities and may reject any such offer, in whole or in part.
Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall be made at one
or more closings (each a “Closing” and the date on which each Closing occurs, a “Closing
Date”). The Closing of the issuance of the Securities shall occur via “Delivery Versus Payment”, i.e., on the
Closing Date, the Company shall issue the Securities directly to the account designated by the Placement Agent and released by the
Transfer Agent, upon receipt of such Securities, the Placement Agent shall electronically deliver such Securities to the applicable
Investor and payment shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company. As compensation
for services rendered, on each Closing Date, the Company shall pay to the Placement Agent the fees and expenses set forth below:
(i)
A cash fee equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities (the “Offering Fee”)
at the closing of the Offering (the “Closing”).
(ii)
The Company also agrees to reimburse Placement Agent’s expenses (with supporting invoices/receipts) of up to $50,000 payable
immediately upon the Closing of the Offering.
(b)
The term of this Agreement will begin on the date set forth above and terminate on the earlier of February 1, 2024 or the completion
of the Offering (the “Exclusive Term”); provided, however, that after the expiration of the Exclusive Term a party
hereto may terminate the engagement with respect to itself at any time upon 10 days written notice to the other parties. Notwithstanding
anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein
and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement,
and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable
pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(g)(4)(A), will survive any expiration or termination
of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue,
investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as
defined below) other than the Company. As used herein (i) “Persons” 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 and (ii) “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 of 1933, as amended (the “Securities Act”).
(c) The
Placement Agent shall be entitled to the Offering Fee, with respect to any offering of equity or equity-linked securities of the
Company to the extent that such financing or capital is provided to the Company by investors which the Placement Agent introduced to
the Company or conducted discussions on behalf of the Company on or after December 28, 2023 and through the end of the Exclusive
Term, and in each case with whom outreach regarding the Offering is approved in advance in writing by the Company (with email
approval from the Company’s CEO being sufficient) (“Eligible Investors”), and such Offering is consummated
or an agreement for sale of securities entered into within the 6 month period following the earlier of the termination or expiration
of this Agreement (any such fee, a “Tail Fee”). Notwithstanding any other provision of this Section 1(c), in no
event will the Placement Agent be eligible to receive a Tail Fee with respect to any of the individuals or entities listed on Exhibit
A hereto (although such individuals and entities, to the extent participating in the Offering will be deemed Eligible Investors
solely for purposes of inclusion in the Offering Fee pursuant to Section 1(a)(i)). Within 10 calendar days following the date of
this Agreement, the Placement Agent will furnish the Company with a written list of each individual and/or entity with respect to
which the Placement Agent believes it remains eligible for a Tail Fee.
Section 2. Representations, Warranties and
Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement Agent as of the date hereof, and
as of each Closing Date, as follows:
(a) Securities
Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”) the
Registration Statement under the Securities Act, which was filed on July 23, 2021 and declared effective on July 30, 2021 for the
registration of the Securities under the Securities Act. Following the determination of pricing among the Company and the
prospective Investors introduced to the Company by Placement Agent, the Company will file with the Commission pursuant to Rules 430
B and 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the
Commission promulgated thereunder, a prospectus supplement relating to the placement of the Securities, their respective pricings
and the plan of distribution thereof and will advise the Placement Agent of all further information (financial and other) with
respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, is hereinafter
called the “Registration Statement”; such prospectus in the form in which it appears in the Registration
Statement at the time of effectiveness, is hereinafter called the “Base Prospectus”; and the prospectus
supplement, in the form in which it will be filed with the Commission pursuant to Rule 424(b) is hereinafter called the
“Final Prospectus.” The Registration Statement at the time it originally became effective is hereinafter called
the “Original Registration Statement.” Any reference in this Agreement to the Registration Statement, the
Original Registration Statement, the Base Prospectus or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein (the “Incorporated Documents”), if any, which were or are filed under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference into the
Registration Statement, the Original Registration Statement, the Base Prospectus or the Final Prospectus, as the case may be; and
any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement, the Original Registration Statement, the Base Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the
Base Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. All references in this
Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement,
the Base Prospectus or the Final Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration
Statement, the Base Prospectus or the Final Prospectus, as the case may be. As used in this paragraph and elsewhere in this
Agreement, “Time of Sale Disclosure Package” means the Base Prospectus, the final terms of the Offering provide
to the Investors in writing and any issuer free writing prospectus as defined in Rule 433 of the Act (each, an “Issuer Free
Writing Prospectus”), if any, that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Time of Sale Disclosure Package. The term “any Prospectus” shall mean, as the context requires, the Base
Prospectus, the Final Prospectus, and any supplement to either thereof. The Company has not received any notice that the Commission
has issued or intends to issue a stop order suspending the effectiveness of the Registration Statement or the use of the Base
Prospectus or intends to commence a proceeding for any such purpose.
(b) Assurances.
The Original Registration Statement, as amended, (and any further documents to be filed with the Commission) contains all exhibits
and schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the
time it became effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and did
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the Company makes no representations with respect to the
Placement Agent Information (as defined below) . The Base Prospectus, and the Final Prospectus, each as of its respective date,
comply or will comply in all material respects with the Securities Act and the applicable Rules and Regulations. Each of the Base
Prospectus and the Final Prospectus, as amended or supplemented, did not and will not contain as of the date thereof any 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; provided, however, that the Company makes no representations with respect
to the Placement Agent Information. The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the applicable Rules and Regulations promulgated thereunder, and none of such
documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the Base
Prospectus or Final Prospectus), in light of the circumstances under which they were made not misleading. No post-effective
amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually
or in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission. Except
for this Agreement and the Transaction Documents, there are no documents required to be filed with the Commission in connection with
the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed
within the requisite time period. Except for this Agreement and the Transaction Documents, there are no contracts or other documents
required to be described in the Base Prospectus or Final Prospectus, or to be filed as exhibits or schedules to the Registration
Statement, which have not been described or filed as required. “Placement Agent Information” shall mean the
information provided to the Company by the Placement Agents and included in subsections “Electronic Distribution,”
“Regulation M,” and “Other Relationships,” under the “Plan of Distribution” section in the Final
Prospectus.
(c)
Material Information. Neither the Company nor any of its directors and officers has distributed and none of them will distribute,
prior to each Closing Date, any material information in connection with the offering and sale of the Securities other than the Time of
Sale Disclosure Package.
(d)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and the Time of Sale Disclosure Package and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of each of this Agreement by the Company and the consummation by it of the transactions contemplated
hereby and thereby and under the have been duly authorized by all necessary action on the part of the Company and no further action is
required by the Company, the Company’s Board of Directors (the “Board of Directors”) or the Company’s stockholders
in connection therewith other than in connection with the Required Approvals (as defined in the Purchase Agreement). This Agreement has
been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation
of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies
and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(e) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant
to the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the transactions
contemplated hereby and thereby to which it is a party 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, acceleration or cancellation (with or without notice, lapse of time or both) of, any
agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding
to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or
affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is
subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be
expected to result in a Material Adverse Effect.
(f)
Certificates. Any certificate signed by an officer of the Company and delivered to the Placement Agent or to counsel for
the Placement Agent shall be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth
therein.
(g) Reliance.
The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations and warranties
and hereby consents to such reliance.
(h)
Forward-Looking Statements. No forward-looking statements (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in the Time of Sale Disclosure Package has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(i)
Statistical or Market-Related Data. Any statistical, industry-related and market-related data included or incorporated by
reference in the Time of Sale Disclosure Package, are based on or derived from sources that the Company reasonably and in good faith believes
to be reliable and accurate, and such data agree with the sources from which they are derived.
(j)
FINRA Affiliations. There are no affiliations with any FINRA member firm that is participating in the Offering among the
Company’s officers, directors or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company.
(k)
Representations and Warranties Incorporated by Reference. Each of the representations and warranties (together with any
related disclosure schedules thereto) made to the Investors in the Purchase Agreement is hereby incorporated herein by reference (as though
fully restated herein) and is hereby made to, and in favor of, the Placement Agent.
Section 3. Delivery and Payment. Each
Closing shall occur at the offices of McGuireWoods LLP, 201 N. Tryon Street, Suite 3000, Charlotte, North Carolina 28202 (“Company
Counsel”) (or at such other place as shall be agreed upon by the Placement Agent and the Company, which may include the electronic
exchange of .pdf copies of executed documents). Subject to the terms and conditions hereof, at each Closing payment of the purchase price
for the Securities sold on such Closing Date shall be made by Federal Funds wire transfer, against delivery of such Securities, and such
Securities shall be registered in such name or names and shall be in such denominations, as the Placement Agent may request at least one
business day before the Closing Date.
Deliveries of the documents
with respect to the purchase of the Securities, if any, shall be made at the offices of Company Counsel. All actions taken at a Closing
shall be deemed to have occurred simultaneously.
Section 4. Covenants and Agreements of the
Company. The Company further covenants and agrees with the Placement Agent as follows:
(a)
Registration Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of
the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus
or the Final Prospectus has been filed and will furnish the Placement Agent with copies thereof. The Company will file promptly all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a),
14 or 15(d) of the Exchange Act subsequent to the date of any Prospectus and for so long as the delivery of a prospectus is required in
connection with the Offering. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request
by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii)
of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or
suspending the use of the Base Prospectus or the Final Prospectus or any prospectus supplement or any amendment or supplement thereto
or any post-effective amendment to the Registration Statement, of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company
shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall
enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain
the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have
such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with
the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing
of documents thereunder, and will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are
received in a timely manner by the Commission.
(b) Blue
Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Securities
for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors may
reasonably request and will make such applications, file such documents, and furnish such information as may be reasonably required
for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or required to file such a consent, and provided further
that the Company shall not be required to produce any new disclosure document. The Company will, from time to time, prepare and file
such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a
period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent
promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering,
sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible moment.
(c)
Amendments and Supplements to a Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. If during
the period in which a prospectus is required by law to be delivered in connection with the distribution of Securities contemplated by
the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus (the “Prospectus Delivery Period”),
any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the
Placement Agent, it becomes necessary to amend or supplement the Registration Statement, the Time of Sale Disclosure Package or the Final
Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be,
not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, the Time of Sale Disclosure Package
or the Final Prospectus, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement
Agent and to dealers, an appropriate amendment or supplement to the Registration Statement, the Time of Sale Disclosure Package or the
Final Prospectus that is necessary in order to make the statements in the Registration Statement, the Time of Sale Disclosure Package
or the Final Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be,
not misleading, or so that the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, as so amended or supplemented,
will comply with law. Before amending or supplementing the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus
in connection with the Offering, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and
will not file any such amendment or supplement to which the Placement Agent reasonably objects.
(d)
Copies of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agent, without charge,
during the period beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies of any
Prospectus or prospectus supplement and any amendments and supplements thereto, as the Placement Agent may reasonably request.
(e) Free
Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent,
make any offer relating to the Securities that would constitute an Company Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the
Company with the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent
expressly consents in writing to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the
Company covenants that it shall (i) treat each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii)
comply with the requirements of Rule 164 and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(f)
Transfer Agent. For a period of three (3) years from the Closing Date, the Company will maintain, at its expense, a registrar
and transfer agent for the Common Stock.
(g)
Earnings Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but
in any event not later than 18 months after the last Closing Date, the Company will make generally available to its security holders and
to the Placement Agent an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing Date,
that satisfies the provisions of Section 11(a) and Rule 158 under the Securities Act.
(h)
Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with
the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and
in the manner required by the Exchange Act.
(i)
Additional Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement
Agent or the Investors reasonably deem necessary or appropriate to consummate the Offering, all of which will be in form and substance
reasonably acceptable to the Company, Placement Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and
each is a third-party beneficiary of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription
or other agreement with Investors in the Offering.
(j)
No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in,
or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities
of the Company to facilitate the sale or resale of the Securities.
(k)
Acknowledgment. The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit
and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement
Agent's prior written consent.
(l)
Announcement of Offering. The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing, make
public its involvement with the Offering.in any “tombstone” or similar format. If the Placement Agent desire to make public
their involvement with the Offering by any other means or in any other format, the Placement Agent shall first obtain with the Company’s
prior written consent.
(m)
Reliance on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n)
Research Matters. By entering into this Agreement, the Placement Agent does not provide any promise, either explicitly or
implicitly, of favorable or continued research coverage of the Company and the Company hereby acknowledges and agrees that the Placement
Agent’s selection as a placement agent for the Offering was in no way conditioned, explicitly or implicitly, on the Placement Agent
providing favorable or any research coverage of the Company. In accordance with FINRA Rule 2711(e), the parties acknowledge and agree
that the Placement Agent has not directly or indirectly offered favorable research, a specific rating or a specific price target, or threatened
to change research, a rating or a price target, to the Company or inducement for the receipt of business or compensation.
Section 5. 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 Section 2 hereof, in each case as of the date hereof and as of each Closing Date as
though then made, to the timely performance by each of the Company of its covenants and other obligations hereunder on and as of such
dates, and to each of the following additional conditions:
(a)
Compliance with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus (in accordance with
Rule 424(b)) and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been
duly filed with the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing
or suspending the use of any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened
by the Commission; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the
Company shall have been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings for
that purpose shall have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission,
securities regulatory authority or stock exchange; all requests for additional information on the part of the Commission shall have been
complied with; and the FINRA shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.
(b)
Corporate Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration
Statement and each Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner
reasonably satisfactory to the Placement Agent's counsel, and such counsel shall have been furnished with such papers and information
as it may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.
(c)
No Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date,
in the Placement Agent's sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect
or any material adverse change or development involving a prospective material adverse change in the condition 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 and
Prospectus (“Material Adverse Change”).
(d)
Opinion of Counsel for the Company. The Placement Agent shall have received on each Closing Date the favorable opinion of
legal counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter addressed to the
Placement Agent and in form and substance satisfactory to the Placement Agent.
(e)
Officers’ Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company,
dated as of such Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and
the Placement Agent shall be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Time of Sale
Disclosure Package, the Final Prospectus, and this Agreement and to the further effect that:
(i)
The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing
Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at
or prior to such Closing Date;
(ii)
No stop order suspending the effectiveness of the Registration Statement or the use of any Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued by
any securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;
(iii) When
the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such
certificate, the Registration Statement, the Time of Sale Disclosure Package, the Final Prospectus and the Incorporated Documents,
when such documents became effective or were filed with the Commission, contained all material information required to be included
therein by the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the
case may be, and in all material respects conformed to the requirements of the Securities Act and the Exchange Act and the
applicable rules and regulations of the Commission thereunder, as the case may be, and the Registration Statement, the Time of Sale
Disclosure Package, and the Final Prospectus , did not and do not include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading (provided, however, that the preceding representations and warranties contained in this
paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Placement Agent expressly for use therein) and, since the effective date of the Registration
Statement, there has occurred no event required by the Securities Act and the rules and regulations of the Commission thereunder to
be set forth in the Registration Statement or the Time of Sale Disclosure Package which has not been so set forth; and
(iv)
Subsequent to the respective dates as of which information is given in the Registration Statement, the Time and Sale Disclosure
Package and the Final Prospectus, there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company
and the Subsidiaries taken as a whole, except transactions entered into in the ordinary course of business; (c) any obligation, direct
or contingent, that is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except
obligations incurred in the ordinary course of business; (d) any material change in the capital stock (except changes thereto resulting
from the exercise of outstanding stock options or warrants) or outstanding indebtedness of the Company or any Subsidiary; (e) any dividend
or distribution of any kind declared, paid or made on the capital stock of the Company; or (f) any loss or damage (whether or not insured)
to the property of the Company or any Subsidiary which has been sustained or will have been sustained which has a Material Adverse Effect.
(f)
Lock-Up Agreements. On the Closing Date, the Placement Agent shall have received the executed lock-up agreement, in the
form attached hereto as Exhibit B, from each of the directors and officers of the Company.
(i) CFO
Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company, dated as of such Closing Date,
signed by the Chief Financial Officer of the Company, in the form attached hereto as Exhibit C.
(j) Stock
Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market, and the Company
shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration of the Common Stock
under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall the Company have received
any information suggesting that the Commission or the Trading Market is contemplating terminating such registration or listing, other
than as disclosed in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus.
(k) Additional
Documents. On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received such
information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement Agent by notice
to the Company at any time on or prior to a Closing Date, which termination shall be without liability on the part of any party to any
other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution) and Section 8 (Representations
and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.
Section 6. Payment of Expenses. The
Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the performance of its obligations hereunder
and in connection with the transactions contemplated hereby, including, without limitation: (i) all expenses incident to the issuance,
delivery and qualification of the Securities (including all printing and engraving costs); (ii) all fees and expenses of the registrar
and transfer agent of the Common Stock; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and
sale of the Securities; (iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants
and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution
of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), the Base Prospectus,
the Final Prospectus and each Prospectus Supplement, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees,
reasonable attorneys’ fees and expenses incurred by the Company or the Placement Agent in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the state
securities or blue sky laws or the securities laws of any other country, and, if requested by the Placement Agent, preparing and printing
a “Blue Sky Survey,” an “International Blue Sky Survey” or other memorandum, and any supplements
thereto, advising the Placement Agent of such qualifications, registrations and exemptions; (vii) if applicable, the filing fees incident
to the review and approval by the FINRA of the Placement Agent's participation in the offering and distribution of the Securities; (viii)
the fees and expenses associated with including the Shares and Warrant Shares on the Trading Market; (ix) all costs and expenses incident
to the travel and accommodation of the Company’s and the Placement Agent's employees on the “roadshow,” if any;
and (x) all other fees, costs and expenses referred to in Part II of the Registration Statement provided that expenses incurred
by the Placement Agent to be reimbursed by the Company hereunder shall not exceed $50,000 (or $25,000 if this Offering is not consummated)
in the aggregate, unless otherwise agreed in writing by the Company and the Placement Agent.
Section 7. Indemnification and Contribution.
(a) The
Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent
(within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent,
its affiliates and each such controlling person (the Placement Agent, and each such entity or person. 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 one counsel for all Indemnified Persons, except as otherwise expressly provided herein)
(collectively, the “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, (i) caused by, or arising out of or in
connection with, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the
Time of Sale Disclosure Package, the Final Prospectus or by any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (other than
untrue statements or alleged untrue statements in, or omissions or alleged omissions from, information relating to an Indemnified
Person furnished in writing by or on behalf of such Indemnified Person expressly for use in the Registration Statement, the Time of
Sale Disclosure Package or the Final Prospectus) or (ii) otherwise arising out of or in connection with advice or services rendered
or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions contemplated thereby or any Indemnified
Person's actions or inactions in connection with any such advice, services or transactions; provided, however, that, in the
case of clause (ii) only, the Company shall not be responsible for any Liabilities or Expenses of any Indemnified Person that are
finally judicially determined to have resulted solely from such Indemnified Person's (x) gross negligence or willful misconduct in
connection with any of the advice, actions, inactions or services referred to above or (y) use of any offering materials or
information concerning the Company in connection with the offer or sale of the Securities in the Offering which were not authorized
for such use by the Company and which use constitutes gross negligence or willful misconduct. The Company also agrees to reimburse
each Indemnified Person for all Expenses as they are incurred in connection with enforcing such Indemnified Person's rights under
this Agreement.
(b) Upon
receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity may
be sought under this Agreement, 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 liability which the Company may have on account
of this indemnity or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such
failure. The Company shall, if requested by the Placement Agent, assume the defense of any such Action including the employment of
counsel reasonably satisfactory to the Placement Agent, which counsel may also be counsel 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 counsel or (ii) the named parties to any such Action (including any impeded parties) include such Indemnified Person and
the Company, and such Indemnified Person shall have been advised in the reasonable opinion of counsel that there is an actual
conflict of interest that prevents the counsel selected by the Company from representing both the Company (or another client of such
counsel) and any Indemnified Person; provided that the Company shall not in such event be responsible hereunder for the fees and
expenses of more than one firm of separate counsel for all Indemnified Persons in connection with any Action or related Actions, in
addition to any local counsel. 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 the Placement
Agent (which shall not be unreasonably withheld), 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 indemnification or contribution may be sought hereunder (whether or
not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination includes an unconditional
release of each Indemnified Person from all Liabilities arising out of such Action for which indemnification or contribution may be
sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
(c)
In the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement,
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 the Placement Agent and any other Indemnified Person, on
the other hand, of the matters contemplated by this Agreement 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 the
Placement Agent 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 fees actually received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to
the Company, on the one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed
to be in the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by the
Company in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated,
bears to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was not guilty
of fraudulent misrepresentation.
(d)
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 Agreement, the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection with any such advice,
services or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted
solely from such Indemnified Person's gross negligence or willful misconduct in connection with any such advice, actions, inactions or
services.
(e)
The reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this
Agreement and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person's services
under or in connection with, this Agreement.
Section 8. Representations and Indemnities
to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company or any
person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent, the Company, or any of its or their
partners, officers or directors or any controlling person, as the case may be, and will survive delivery of and payment for the Securities
sold hereunder and any termination of this Agreement. A successor to a Placement Agent, or to the Company, its directors or officers or
any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained
in this Agreement.
Section 9. Notices. All communications
hereunder shall be in writing and shall be mailed, hand delivered or e-mailed and confirmed to the parties hereto as follows:
If to the Placement Agent to the address set forth
above, attention: Aaron Gurewitz, email: ecm@roth.com
With a copy to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
E-mail: capmkts@egsllp.com
If to the Company:
Fortress Biotech, Inc.
1111 Kane Concourse, Suite 301
Bay Harbor Islands, Florida 33154
Attention: David Jin, Chief Financial Officer
Email: djin@fortressbiotech.com
With a copy to:
McGuireWoods LLP
201 North Tryon Street, Suite 3000
Charlotte, North Carolina 28202
Attention: Rakesh Gopalan, Esq.
Email: rgopalan@mcguirewoods.com
Any party hereto may change
the address for receipt of communications by giving written notice to the others.
Section 10. Successors. This Agreement
will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and directors and controlling
persons referred to in Section 7 hereof, and to their respective successors, and personal representative, and no other person will have
any right or obligation hereunder.
Section 11. Partial Unenforceability.
The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
Section 12. Governing Law Provisions.
This Agreement shall be deemed to have been made and delivered in New York City and both this engagement letter and the transactions contemplated
hereby shall 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 the Placement Agent and the Company: (i) agrees that any
legal suit, action or proceeding arising out of or relating to this engagement letter and/or the transactions contemplated hereby shall
be instituted exclusively in New York Supreme Court, County of New York, or in the United States District Court for the Southern District
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 New York Supreme Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. Each of the Placement Agent and the Company further agrees to accept and
acknowledge service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County
of New York, or in the United States District Court for the Southern District of New York and agrees that service of process upon the
Company mailed by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the
Company, in any such suit, action or proceeding, and service of process upon the Placement Agent mailed by certified mail to the Placement
Agent’s address shall be deemed in every respect effective service process upon the Placement Agent, in any such suit, action or
proceeding. Notwithstanding any provision of this engagement letter to the contrary, the Company agrees that neither the Placement Agent
nor its affiliates, and the respective officers, directors, employees, agents and representatives of the Placement Agent, its affiliates
and each other person, if any, controlling the Placement Agent or any of its affiliates, shall 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 us that are finally judicially determined to have resulted from
the willful misconduct or gross negligence of such individuals or entities. If either party shall commence an action or proceeding to
enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party
for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.
Section 13. General Provisions.
(a)
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed
in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition
herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings
herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
(b)
The Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent has acted at arms length,
are not agents of, and owe no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company only those
duties and obligations set forth in this Agreement and (iii) the Placement Agent may have interests that differ from those of the Company.
The Company waives to the full extent permitted by applicable law any claims it may have against the Placement Agent arising from an alleged
breach of fiduciary duty in connection with the offering of the Securities
[The remainder of this page has been intentionally
left blank.]
If the foregoing is in accordance with your understanding
of our agreement, please sign below whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
|
Very
truly yours, |
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FORTRESS
BIOTECH, INC., |
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a
Delaware corporation |
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|
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|
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By: |
/s/ Lindsay A. Rosenwald, M.D. |
|
|
Name: |
Lindsay A. Rosenwald, M.D. |
|
|
Title: |
President & CEO |
The
foregoing Placement Agency Agreement is hereby confirmed and accepted as of the date first above written.
ROTH
CAPITAL PARTNERS, LLC |
|
|
|
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By: |
/s/ Aaron Gurewitz |
|
|
Name: |
Aaron Gurewitz |
|
|
Title: |
President & Head of Investment Banking |
|
Exhibit A
Fee Tail Excluded Parties
[Intentionally Omitted]
Exhibit B
Lockups
Exhibit C
CFO Certificate
Exhibit 99.1
Fortress Biotech Announces Pricing of $11 Million
Registered Direct Offering Priced At-the-Market Under Nasdaq Rules
Miami, FL – December 29, 2023 –
Fortress Biotech, Inc. (Nasdaq: FBIO) (“Fortress” or “Company”), an innovative biopharmaceutical company focused
on efficiently acquiring, developing and commercializing or monetizing promising therapeutic products and product candidates, today announced
that it has entered into a definitive agreement for the issuance and sale of 3,303,305 shares of its common stock and warrants to purchase
up to 3,303,305 shares of common stock at a combined offering price of $3.33 per share of common stock and accompanying warrant priced
at-the-market under Nasdaq rules. The warrants have an exercise price of $3.21 per share, are immediately exercisable, and will expire
five years following the date of issuance.
The gross proceeds from the offering, before deducting
the placement agent's fees and other offering expenses, are expected to be approximately $11.0 million. Fortress expects to use the net
proceeds from the offering for its operations, including, but not limited to, general corporate purposes, which may include research and
development expenditures, clinical trial expenditures, license or acquisition of new products, and working capital.
Roth Capital Partners is acting as exclusive placement
agent for the offering. The offering is expected to close on or about January 3, 2024, subject to the satisfaction of customary closing
conditions.
The securities described above are being offered
pursuant to a registration statement on Form S-3 (File No. 333-258145), which was declared effective by the Securities and Exchange Commission
(the “SEC”) on July 30, 2021. The offering is being made only by means of a prospectus which is a part of the effective registration
statement. A final prospectus supplement and the accompanying prospectus relating to the registered direct offering will be filed with
the SEC and will be available on the SEC’s website at www.sec.gov. Additionally, when available, electronic copies of the
final prospectus supplement and the accompanying prospectus may be obtained from Roth Capital Partners, LLC at 888 San Clemente Drive,
Newport Beach, CA 92660, or by phone at (800) 678-9147 or email at rothecm@roth.com.
This press release does not constitute an offer
to sell or a solicitation of an offer to buy the securities in this offering, nor shall there by any sale of these securities in any state
or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the
securities laws of any such state or other jurisdiction.
About Fortress Biotech
Fortress Biotech, Inc. (“Fortress”)
is an innovative biopharmaceutical company focused on efficiently acquiring, developing and commercializing or monetizing promising therapeutic
products and product candidates. The company has eight marketed prescription pharmaceutical products and over 25 programs in development
at Fortress, at its majority-owned and majority-controlled partners and subsidiaries and at partners and subsidiaries it founded and
in which it holds significant minority ownership positions. Such product candidates span six large-market areas, including oncology,
rare diseases and gene therapy, which allow it to create value for shareholders. Fortress advances its diversified pipeline through a
streamlined operating structure that fosters efficient drug development. The Fortress model is focused on leveraging its significant
biopharmaceutical industry expertise and network to further expand the company’s portfolio of product opportunities. Fortress has
established partnerships with some of the world’s leading academic research institutions and biopharmaceutical companies to maximize
each opportunity to its full potential, including AstraZeneca, City of Hope, Fred Hutchinson Cancer Center, St. Jude Children’s
Research Hospital, Nationwide Children’s Hospital and Sentynl. For more information, visit www.fortressbiotech.com.
Forward-Looking Statements
This press release 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,
as amended. As used below and throughout this press release, the words “we”, “us” and “our” may refer
to Fortress individually or together with one or more partner companies, as dictated by context. Such statements include, but are not
limited to, any statements relating to the completion of the offering or use or proceeds, the ability to satisfy the closing conditions
related to the offering and the overall timing and completion of such closing; expectations for increases or decreases in expenses; any
statements relating to our growth strategy and product development programs, ability to generate shareholder value, ability of our products
to receive necessary approvals, including FDA approval, ability of our products and therapies to help patients and any other statements
that are not historical facts. Forward-looking statements are based on management’s current expectations and are subject to risks
and uncertainties that could negatively affect our business, operating results, financial condition and stock price. Factors that could
cause actual results to differ materially from those currently anticipated include, risks relating to: our growth strategy; financing
and strategic agreements and relationships; our need for substantial additional funds and uncertainty relating to financings; our ability
to identify, acquire, close and integrate product candidates successfully and on a timely basis; our ability to attract, integrate and
retain key personnel; the early stage of products under development; the results of research and development activities; uncertainties
relating to preclinical and clinical testing; risks relating to the timing of starting and completing clinical trials; the ability to
secure and maintain third-party manufacturing, marketing and distribution of our and our partner companies’ products and product
candidates; government regulation; patent and intellectual property matters; competition; as well as other risks described in Part I,
Item 1A, “Risk Factors,” in our Annual Report on Form 10-K filed on March 31, 2023, subsequent Reports on Form 10-Q, and our
other filings we make with the Securities and Exchange Commission. We expressly disclaim any obligation or undertaking to release publicly
any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations or any changes in
events, conditions or circumstances on which any such statement is based, except as may be required by law, and we claim the protection
of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. The information contained
herein is intended to be reviewed in its totality, and any stipulations, conditions or provisos that apply to a given piece of information
in one part of this press release should be read as applying mutatis mutandis to every other instance of such information appearing herein.
Company Contact:
Jaclyn Jaffe
Fortress Biotech, Inc.
(781) 652-4500
ir@fortressbiotech.com
Media Relations Contact:
Tony Plohoros
6 Degrees
(908) 591-2839
tplohoros@6degreespr.com
Exhibit 99.2
Fortress Biotech Announces Closing of $11 Million
Registered Direct Offering Priced At-the-Market Under Nasdaq Rules
Miami, FL – January 3, 2024 –
Fortress Biotech, Inc. (Nasdaq: FBIO) (“Fortress” or “Company”), an innovative biopharmaceutical company focused
on efficiently acquiring, developing and commercializing or monetizing promising therapeutic products and product candidates, today announced
the closing of its previously announced registered direct offering. The company issued 3,303,305 shares of its common stock and warrants
to purchase up to 3,303,305 shares of common stock at a combined offering price of $3.33 per share of common stock and accompanying warrant
priced at-the-market under Nasdaq rules. The warrants have an exercise price of $3.21 per share, are immediately exercisable, and will
expire five years following the date of issuance.
The gross proceeds from the offering, before deducting
the placement agent's fees and other offering expenses, were approximately $11.0 million. The transaction closed on January 3, 2024.
Roth Capital Partners acted as exclusive placement
agent for the offering.
The securities described above were offered in
the registered direct offering pursuant to a registration statement on Form S-3 (File No. 333-258145), which was declared effective by
the Securities and Exchange Commission (the “SEC”) on July 30, 2021. The securities were offered in the registered direct
offering only by means of a prospectus which is a part of the effective registration statement. A final prospectus supplement and the
accompanying prospectus relating to the registered direct offering were filed with the SEC and will be available on the SEC’s website
at www.sec.gov. Additionally, electronic copies of the final prospectus supplement and the accompanying prospectus
may be obtained from Roth Capital Partners, LLC at 888 San Clemente Drive, Newport Beach, CA 92660, or by phone at (800) 678-9147 or
email at rothecm@roth.com.
This press release does not constitute an offer
to sell or a solicitation of an offer to buy the securities in this offering, nor shall there by any sale of these securities in any state
or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the
securities laws of any such state or other jurisdiction.
About Fortress Biotech
Fortress Biotech, Inc. (“Fortress”)
is an innovative biopharmaceutical company focused on efficiently acquiring, developing and commercializing or monetizing promising therapeutic
products and product candidates. The company has eight marketed prescription pharmaceutical products and over 25 programs in development
at Fortress, at its majority-owned and majority-controlled partners and subsidiaries and at partners and subsidiaries it founded and
in which it holds significant minority ownership positions. Such product candidates span six large-market areas, including oncology,
rare diseases and gene therapy, which allow it to create value for shareholders. Fortress advances its diversified pipeline through a
streamlined operating structure that fosters efficient drug development. The Fortress model is focused on leveraging its significant
biopharmaceutical industry expertise and network to further expand the company’s portfolio of product opportunities. Fortress has
established partnerships with some of the world’s leading academic research institutions and biopharmaceutical companies to maximize
each opportunity to its full potential, including AstraZeneca, City of Hope, Fred Hutchinson Cancer Center, St. Jude Children’s
Research Hospital, Nationwide Children’s Hospital and Sentynl. For more information, visit www.fortressbiotech.com.
Forward-Looking Statements
This press release 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,
as amended. As used below and throughout this press release, the words “we”, “us” and “our” may refer
to Fortress individually or together with one or more partner companies, as dictated by context. Such statements include, but are not
limited to, any statements relating to the use of proceeds, expectations for increases or decreases in expenses; any
statements relating to our growth strategy and product development programs, ability to generate shareholder value, ability of our products
to receive necessary approvals, including FDA approval, ability of our products and therapies to help patients and any other statements
that are not historical facts. Forward-looking statements are based on management’s current expectations and are subject to risks
and uncertainties that could negatively affect our business, operating results, financial condition and stock price. Factors that could
cause actual results to differ materially from those currently anticipated include, risks relating to: our growth strategy; financing
and strategic agreements and relationships; our need for substantial additional funds and uncertainty relating to financings; our ability
to identify, acquire, close and integrate product candidates successfully and on a timely basis; our ability to attract, integrate and
retain key personnel; the early stage of products under development; the results of research and development activities; uncertainties
relating to preclinical and clinical testing; risks relating to the timing of starting and completing clinical trials; the ability to
secure and maintain third-party manufacturing, marketing and distribution of our and our partner companies’ products and product
candidates; government regulation; patent and intellectual property matters; competition; as well as other risks described in Part I,
Item 1A, “Risk Factors,” in our Annual Report on Form 10-K filed on March 31, 2023, subsequent Reports on Form 10-Q, and our
other filings we make with the Securities and Exchange Commission. We expressly disclaim any obligation or undertaking to release publicly
any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations or any changes in
events, conditions or circumstances on which any such statement is based, except as may be required by law, and we claim the protection
of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. The information contained
herein is intended to be reviewed in its totality, and any stipulations, conditions or provisos that apply to a given piece of information
in one part of this press release should be read as applying mutatis mutandis to every other instance of such information appearing herein.
Company Contact:
Jaclyn Jaffe
Fortress Biotech, Inc.
(781) 652-4500
ir@fortressbiotech.com
Media Relations Contact:
Tony Plohoros
6 Degrees
(908) 591-2839
tplohoros@6degreespr.com
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