Form 8-K
8-K — Elicio Therapeutics, Inc.
Accession: 0001104659-26-080058
Filed: 2026-07-02
Period: 2026-07-01
CIK: 0001601485
SIC: 2834 (PHARMACEUTICAL PREPARATIONS)
Item: Entry into a Material Definitive Agreement
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2619637d1_8k.htm (Primary)
EX-5.1 — EXHIBIT 5.1 (tm2619637d1_ex5-1.htm)
EX-10.1 — EXHIBIT 10.1 (tm2619637d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2619637d1_ex10-2.htm)
EX-99.1 — EXHIBIT 99.1 (tm2619637d1_ex99-1.htm)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
July 1, 2026
Elicio Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
Delaware
001-39990
11-3430072
(State or other jurisdiction of incorporation or organization)
(Commission File Number)
(IRS Employer Identification No.)
451 D Street, 5th Floor
Boston, Massachusetts 02210
(Address of principal executive offices, including
zip code)
(857) 209-0050
Registrant's telephone number, including area code
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
(Title of each class)
(Trading Symbol)
(Name of exchange on which registered)
Common Stock, $0.01 par value per share
ELTX
The Nasdaq Capital Market
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
x
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement
On July 1, 2026, Elicio Therapeutics, Inc., a Delaware corporation
(the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain institutional
investors (each an “Investor” and, collectively, the “Investors”), pursuant to which the Company agreed to issue
and sell, in a registered direct offering by the Company directly to the Investors (the “Offering”) an aggregate of 4,380,313
shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (“Common Stock”). Each share
of Common Stock was sold at an offering price of $3.43. The aggregate gross proceeds to the Company from the Offering were approximately
$15 million before deducting the placement agents’ fees and related offering expenses.
The Purchase Agreement contains customary representations and warranties
and agreements of the Company and the Investors and customary indemnification rights and obligations of the parties. Pursuant to the terms
of the Purchase Agreement, the Company has agreed to certain restrictions on the issuance and sale of its Common Stock or Common Stock
Equivalents (as defined in the Purchase Agreement) during the 30-day period following the closing of the Offering.
The Shares were offered by the Company pursuant to a registration
statement on Form S-3 (File No. 333-293861), which was filed with the Securities and Exchange Commission (the
“Commission”) on February 27, 2026, as amended on March 2, 2026 and further amended on March 12, 2026, and declared effective by the Commission on March 16,
2026 (the “Registration Statement”).
Pursuant to a placement agency agreement (the “Placement
Agency Agreement”) with Titan Partners Group, LLC, a division of American Capital Partners, as lead placement agent
(“Titan Partners”), the Company agreed to pay Titan Partners and B. Riley Securities, Inc., as co-placement agent, in
connection with the Offering certain placement agents' fees and related Offering expenses.
The Offering is expected to close on July 6, 2026, subject to customary
closing conditions.
The foregoing summaries of the Purchase Agreement and the Placement
Agency Agreement do not purport to be complete and are subject to, and qualified in their entirety by, such documents attached as Exhibits
10.1 and 10.2, respectively, to this Current Report on Form 8-K, which are incorporated herein by reference.
This Current Report on Form 8-K does not constitute an offer to sell
any securities or a solicitation of an offer to buy any securities in this Offering, nor shall there be any sale of any securities in
any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
A copy of the opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. relating to the legality of the issuance and sale of the securities is attached as Exhibit 5.1 hereto.
Item 8.01. Other Events
On July 1, 2026, the Company issued a press release (the “Pricing
Press Release”) announcing the pricing of the Offering. A copy of the Pricing Press Release is attached hereto as Exhibit 99.1 and
is incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit
No.
Description
5.1
Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
10.1
Form of Securities Purchase Agreement, dated as of July 1, 2026, by and among Elicio Therapeutics, Inc. and the purchasers party thereto.
10.2+
Placement Agency Agreement, dated as of July 1, 2026, by and between Elicio Therapeutics, Inc. and Titan Partners Group LLC, a division of American Capital Partners, LLC.
23.1
Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).
99.1
Pricing Press Release, dated July 1, 2026.
104
Cover Page Interactive Data File (formatted as Inline XBRL and contained
in Exhibit 101)
+
Schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company undertakes
to furnish supplemental copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission.
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.
Elicio Therapeutics, Inc.
By:
/s/ ROBERT CONNELLY
Date: July 2, 2026
Robert Connelly
President and Chief Executive Officer
(Principal Executive Officer)
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2619637d1_ex5-1.htm · Sequence: 2
Exhibit 5.1
919 Third Avenue
New York, NY 10022
212 935 3000
mintz.com
July 2, 2026
Elicio Therapeutics, Inc.
451 D Street, 5th Floor
Boston, MA 02210
Ladies and Gentlemen:
We have acted as legal counsel to Elicio Therapeutics,
Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange
Commission (the “Commission”) of a Prospectus Supplement, dated July 1, 2026 (the “Prospectus Supplement”), to
a Registration Statement (File No. 333-293861) on Form S-3 (the “Registration Statement”), filed by the Company with the Commission
under the Securities Act of 1933, as amended (the “Securities Act”). The Prospectus Supplement relates to the sale of an aggregate
of 4,380,313 shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”),
pursuant to the Securities Purchase Agreement, dated July 1, 2026, by and between the Company and the purchasers named therein (the “Purchase
Agreement”). The form of Purchase Agreement will be filed as an exhibit to a Current Report on Form 8-K and incorporated by reference
into the Registration Statement. This opinion is being rendered in connection with the filing of the Prospectus Supplement with the Commission.
All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement.
In connection with this opinion, we have examined
the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and
Amended and Restated Bylaws, each as currently in effect, the Registration Statement and the exhibits thereto, the Prospectus Supplement,
the Purchase Agreement and such other records of the corporate proceedings of the Company and certificates of the Company’s officers
as we have deemed relevant.
In our examination, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such
copies. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the
opinions set forth below, on certificates of officers of the Company.
Our opinion is limited to the General Corporation
Law of the State of Delaware, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein
with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.
Based upon the foregoing, we are of the opinion
that the Shares, when issued and delivered in accordance with the terms of the Purchase Agreement, will be validly issued, fully paid
and non-assessable.
Please note that we are opining only as to the
matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing
statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources
of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
Boston Los
Angeles MIAMI New York San Diego San Francisco toronto Washington
Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C.
MINTZ
July 2, 2026
Page 2
We understand that the Company wishes to file
this opinion with the Commission as an exhibit to a Current Report on Form 8-K for incorporation by reference into the Registration Statement
in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act and to reference the firm’s
name under the caption “Legal Matters” in the Prospectus Supplement, and we hereby consent thereto. In giving this consent,
we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules
and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2619637d1_ex10-1.htm · Sequence: 3
Exhibit 10.1
SECURITIES
PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”)
is dated as of July 1, 2026, between Elicio Therapeutics, 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 (as defined below) of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
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:
“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 first (1st) Trading
Day following the date hereof (or the second (2nd) Trading Day following the date hereof if this Agreement is signed on a day that is
not a Trading Day or after 4:00 p.m. (New York City time) and before midnight (New York City time) on a Trading Day).
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.01 per share, and any other class of securities into which such securities
may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company
Counsel” means Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with offices located at One Financial Center, Boston, Massachusetts
02111.
“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.
“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) the Shares to be sold hereunder; (B) any shares of Common Stock issued by the
Company upon the exercise of an option or warrant or the conversion of a convertible security outstanding on the date hereof and referred
to in the Registration Statement and the Prospectus; (C) any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the Registration Statement and the Prospectus; (D) any
shares of Common Stock issued pursuant to any existing non-employee director stock plan or dividend reinvestment plan referred to in the
Registration Statement and the Prospectus; (E) the filing by the Company of any registration statement on Form S-8 or a successor
form thereto; (F) facilitating the establishment of a trading plan on behalf of a shareholder, officer or director of the Company
pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of shares of Common Stock, provided that (i) such plan does
not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing
under the Exchange Act is required to be made by the Company regarding the establishment of such plan, such announcement or filing shall
include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period; and (G) shares
of Common Stock or other securities issued in connection with a strategic transaction (including strategic alliances, commercial lending
relationships, joint ventures, acquisitions and licenses), provided that the aggregate number of shares issued pursuant to this clause
(G) (on an as-converted or as-exercised basis, as the case may be) shall not exceed five percent (5%) of the total number of outstanding
shares of Common Stock immediately following the issuance and sale of the Shares.
2
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Per Share
Purchase Price” equals $3.43, 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 $0.01.
“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.
“Placement
Agent” means Titan Partners Group LLC, a division of American Capital Partners, LLC, as lead placement agent hereunder.
“Pre-Funded
Warrants” means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance
with Section 2.2(a) hereof, which Pre-Funded Warrants shall be exercisable immediately and will expire when exercised in full,
in the form of Exhibit A attached hereto.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“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 final base prospectus filed for the Registration Statement, including all information, documents and exhibits filed with or
incorporated by reference into such prospectus.
“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.
“Registration
Statement” means the effective registration statement on Form S-3 filed with the Commission (File No. 333-293861),
including all information, documents and exhibits filed with or incorporated by reference into such registration statement, which registers
the sale and issuance of the Securities to the Purchasers.
3
“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.
“Securities”
means the Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“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 Pre-Funded Warrants (if applicable) 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 (excluding for the avoidance of doubt, 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 in the SEC Reports, 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).
4
“Transaction
Documents” means this Agreement, the Pre-Funded 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 Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing
address of 1 State Street, 30th Floor, New York, New York 10004, and any successor transfer agent of the Company.
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, an aggregate of $15,024,473.59 of Shares; 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. In each case, the election to receive Pre-Funded Warrants is solely at
the option of the Purchaser. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such
Purchaser shall be made available for “Delivery Versus Payment” (“DVP”) settlement with the Company or
its designee. The Company shall deliver to each Purchaser its respective Shares (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 (including remotely by electronic transmission) or as the Company and the Placement Agent shall
mutually agree. In the event that the Closing does not occur within three Business Days after the Closing Date, the Company shall promptly
(but not later than one business day thereafter) return the previously wired amounts to each respective Purchaser by wire transfer of
United States dollars in immediately available funds to the account specified by each Purchaser, and any book entries for the Securities
shall be deemed cancelled. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such
Purchaser shall be made available for DVP settlement with the Company or its designee. The Company shall deliver to each Purchaser its
respective Securities, 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 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, and the Company shall be deemed unconditionally bound to sell, such Pre-Settlement Shares to such
Purchaser 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.
5
Notwithstanding the foregoing,
with respect to any Notice(s) of Exercise (as defined in the appliable Pre-Funded Warrant) delivered on or prior to 04:00 p.m. (New
York City time) on the Trading Day immediately prior to the Closing Date, which may be delivered at any time after the time of execution
of this Agreement, the Company agrees to deliver the applicable 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 applicable Pre-Funded
Warrant) for purposes hereunder.
2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
legal opinion of Company Counsel, directed to the Placement Agent and the Purchasers, in form and substance reasonably acceptable to the
Placement Agent and Purchasers;
(iii) the
Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Chief
Executive Officer;
(iv) subject
to 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 Warrant, if applicable), registered in the name of such Purchaser;
6
(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 $0.01, with an exercise price equal to $0.01 per share of Common
Stock, subject to adjustment therein;
(vi) the
Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act); and
(vii) from
the Company’s independent accounting firm, a letter dated as of the Closing Date, in form and substance satisfactory to the Placement
Agent, containing statements and information of the type ordinarily included in accountants’ “comfort letters” with
respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount (minus, if applicable, a 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), 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 with respect to each Purchaser 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) when
made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein
in which case they shall be accurate 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 in all material respects 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.
7
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless such
representation or warranty is as of a specific date therein in which case they shall be accurate in all material respects (or, to the
extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company;
(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; and
(vi) after
giving effect to the issuance of the Securities pursuant to this Agreement, on the Closing Date, no fewer than 26,281,882 shares of Common
Stock of the Company will have been issued and outstanding, and all such issued and outstanding shares of Common Stock shall have been
issued prior to or contemporaneously with the issuance of the Securities to the Purchasers.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the SEC Reports (defined below), the Company hereby makes the following representations
and warranties to each Purchaser:
(a) Registration
Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the Securities Act. Each of the Registration
Statement and any amendment thereto has become effective under the Securities Act, including General Instruction I.B.1 of Form S-3.
The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least
12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as
defined in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an
entity that is not a shell company. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto has been issued by the Commission under the Securities Act, no order preventing or suspending the use of any preliminary prospectus
or the Prospectus has been issued by the Commission and no proceedings for any of those purposes have been instituted by the Commission
or are pending or, to the Company’s knowledge, contemplated by the Commission. The Company has complied with each request (if any)
from the Commission for additional information.
8
Each of the Registration Statement and any post-effective
amendment thereto, at the time of its effectiveness, complied in all material respects with the requirements of the Securities Act. The
Prospectus and the Prospectus Supplement, and any amendment or supplement thereto, at the time each was filed with the Commission, complied
in all material respects with the requirements of the Securities Act. The Prospectus and the Prospectus Supplement delivered to the Purchasers
for use in connection with the offering were or will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
The Registration Statement, the Prospectus and
the Prospectus Supplement, and the filing of the Registration Statement, the Prospectus and the Prospectus Supplement with the Commission,
have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization.
(b) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, at the Closing Date or at the date
hereof, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor the Prospectus
Supplement, nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b),
at the Closing Date or at the date hereof, included, includes or will include an untrue statement of a material fact or omitted, omits
or will 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 documents incorporated or deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with
the Commission, as the case may be, when read together with the other information in the Registration Statement and the Prospectus, did
not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) Independent
Accountants. Baker Tilly US, LLP, the accounting firm that certified the financial statements and supporting schedules of the Company
that are incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting firm
as required by the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board (United States).
9
(d) SEC
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under
the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve months 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.
(e) Financial
Statements; Non-GAAP Financial Measures. The financial statements (including the related notes thereto) of the Company included or
incorporated by reference in the Registration Statement and the Prospectus, together with the related schedules and notes, comply as to
form in all material respects with Regulation S-X under the Securities Act and present fairly, in all material respects, the financial
position of the Company and its consolidated Subsidiaries (as defined below) at the dates indicated and the statement of operations and
comprehensive loss, stockholders’ equity (deficit) and cash flows of the Company and its consolidated Subsidiaries for the periods
specified; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods covered thereby, except in the case of unaudited interim financial statements, which
are subject to normal year-end adjustments and do not contain certain footnotes as permitted by the applicable rules of the Commission,
and any supporting schedules, if any, present fairly, in all material respects, the information required to be stated therein. The selected
financial data and the summary financial information, if any, and other financial data included or incorporated by reference in the Registration
Statement and the Prospectus has been derived from the accounting records of the Company and present fairly, in all material respects,
the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein.
Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated
by reference in the Registration Statement or the Prospectus under the Securities Act or the rules and regulations promulgated under
the Securities Act. All disclosures contained in the Registration Statement or the Prospectus, or incorporated by reference therein, regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation
G of the Exchange Act, and Item 10 of Regulation S-K, to the extent applicable. The interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement and the Prospectus fairly presents the information called
for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
10
(f) Compliance
with the Sarbanes-Oxley Act of 2002. There is and has been no failure on the part of the Company or any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith, with which the Company is required to comply, including Section 402
related to loans.
(g) No
Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given
in the Registration Statement or the Prospectus, (i) there has not been any change in the capital stock (other than the issuance
of shares of Common Stock upon exercise of stock options and warrants described as outstanding in, and the grant of options and awards
under the Company’s existing stock-based compensation plans (the “Company Stock Plans”) described in, and the issuance
of any stock upon the conversion of Company securities described in the Registration Statement and the Prospectus, and the repurchase
or retirement of shares of capital stock pursuant to agreements providing for an option to repurchase or a right of first refusal on behalf
of the Company pursuant to the Company’s repurchase rights), any change in short-term debt or long-term debt of the Company, or
any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or
any material adverse change, or any development that would reasonably be expected to result in a material adverse change, in or affecting
the business, properties, management, financial position, stockholders’ equity, results of operations or prospects of the Company,
whether or not arising in the ordinary course of business (a “Material Adverse Effect”); (ii) the Company has not entered
into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company or incurred any
liability or obligation, direct or contingent, that is material to the Company; (iii) the Company has not sustained any loss or interference
with its business that is material to the Company and that is either from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory
authority, except in each case as otherwise disclosed in the Registration Statement and the Prospectus; and (iv) there has been no
dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(h) Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened
against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which
(i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the Shares or (ii) could,
if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor
any Subsidiary, nor, to the Company’s knowledge, any director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been,
and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or
any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
11
(i) Good
Standing of the Company. The Company has been duly organized and is validly existing and in good standing under the laws of its jurisdiction
of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property
or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and
to conduct the business in which it is engaged, except where the failure to be so qualified or in good standing or have such power or
authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Other than as disclosed
in Exhibit 21.1 of the Company’s most recent Annual Report on Form 10-K, as amended, the Company does not have any direct
or indirect subsidiaries and does not own or control, directly or indirectly, any corporation, association or other entity.
(j) Good
Standing of the Company’s Subsidiaries. Each “significant subsidiary” of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized
and is validly existing in good standing (or the applicable foreign equivalent) under the laws of the jurisdiction of its incorporation
or organization, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business,
except where the failure to be so qualified or to be in good standing would not result in a Material Adverse Effect. Except as otherwise
disclosed in the Registration Statement and the Prospectus, all of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and validly issued, is fully paid and non assessable and is owned by the Company, directly or through Subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock
of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only Subsidiaries
of the Company are the entities listed on Exhibit 21.1 of the Company’s most recent Annual Report on Form 10-K, as amended.
(k) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement and the Prospectus
(except for subsequent issuances, if any, (A) pursuant to this Agreement, (B) pursuant to reservations, agreements or employee
benefit plans referred to in the Registration Statement and the Prospectus or (C) pursuant to the conversion of convertible securities
or exercise of options referred to in the Registration Statement and the Prospectus). The outstanding shares of capital stock of the Company
have been duly authorized and are validly issued, fully paid and non assessable. None of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company.
12
(l) Stock
Options. Except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, with respect to the stock options (the “Stock Options”) granted pursuant to the Company Stock Plans, (i) each
Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986,
as amended (the “Code”), so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on
which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action,
including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and
any required stockholder approval by the necessary number of votes or written consents, and, to the knowledge of the Company (other than
with respect to the execution and delivery by the Company) the award agreement governing such grant (if any) was duly executed and delivered
by each party thereto, (iii) each such grant was made, in all material respects, in accordance with the terms of the Company Stock
Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the rules of the Nasdaq
Stock Market LLC and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for
in accordance with GAAP in the financial statements (including the related notes) of the Company. Each Company Stock Plan is accurately
described in all material respects in the Registration Statement and the Prospectus. The Company has not knowingly granted, and there
is no and has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinating the grant of Stock
Options with, the release or other public announcement of material information regarding the Company or its results of operations or prospects.
(m) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company. The execution and delivery by the Company
of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of (i) applicable
law, (ii) the certificate of incorporation or by-laws of the Company, (iii) any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iv) any judgment,
order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, except that, in the
case of clause (i) and (iii) as would not, individually or in the aggregate, reasonably be expected to have a material adverse
effect on the Company or on the power and ability of the Company to perform its obligations under this Agreement, and no consent, approval,
authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(n) Authorization
and Description of Securities. The Shares and the Pre-Funded Warrant Shares to be purchased by the Purchasers from the Company have
been duly authorized for issuance and sale to the Purchasers pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable,
free and clear of all Liens imposed by the Company; and the issuance of the Shares is not subject to the preemptive or other similar rights
of any securityholder of the Company. The Common Stock conforms to all statements relating thereto contained in this Agreement, the Registration
Statement and the Prospectus, and such description conforms to the rights set forth in the instruments defining the same. The Pre-Funded
Warrant Shares are duly authorized and binding obligations of the Company under the law of the jurisdiction governing the Warrants and,
when issued in accordance with this Agreement, will be validly issued and free and clear of all liens imposed by the Company. No holder
of Shares will be subject to personal liability by reason of being such a holder.
13
(o) Registration
Rights. Except as described in the Registration Statement and the Prospectus, to the extent that any person has the right to require
the Company to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Shares, those rights have been waived as of the date of this Agreement with respect to such
filing or issuance and sale of Shares pursuant to this Agreement.
(p) Absence
of Violations, Defaults and Conflicts. Neither the Company nor any Subsidiary is (i) in violation of its charter, by-laws or
similar organizational document, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument
to which the Company or any Subsidiary is a party or by which either of them may be bound or to which any of the properties or assets
of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would
not, individually or in the aggregate, result in a Material Adverse Effect, or (iii) in violation of any law, statute, rule, regulation,
judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority,
body or agency having jurisdiction over the Company or its Subsidiaries or any of their respective properties, assets or operations (each,
a “Governmental Entity”), except for such violations that would not, individually or in the aggregate, result in a Material
Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the
sale of the Shares as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or its Subsidiaries pursuant
to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances
that would not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter, by-laws or similar organizational document of the Company or its Subsidiaries or any law, statute, rule,
regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event
or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or its Subsidiaries.
(q) Listing.
The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action
designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange
Act nor has the Company received any notification that the Commission is contemplating terminating such registration. The Company has
not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed
or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The
Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements. The Company is in compliance with the current listing standards of the Nasdaq Capital Market.
14
(r) Absence
of Labor Dispute. No labor dispute with the employees of the Company or its Subsidiaries exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its Subsidiaries’
principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.
(s) Absence
of Proceedings. Except as disclosed in the Registration Statement and the Prospectus, there is no action, suit, proceeding, inquiry
or investigation before or brought by any Governmental Entity (including, without limitation, any action, suit proceeding, inquiry or
investigation before or brought by the U.S. Food and Drug Administration (the “FDA”), the European Medicines Agency (the “EMA”)),
or any comparable regulatory authority in any jurisdiction now pending or, to the knowledge of the Company, threatened, against or affecting
the Company or its Subsidiaries, which would reasonably be expected to result in a Material Adverse Effect, or which would reasonably
be expected to materially and adversely affect their respective properties or assets or the consummation of the transactions contemplated
in this Agreement or the performance by the Company of its obligations hereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any such Subsidiary is a party or of which any of their respective properties or assets is the subject
which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business,
would not reasonably be expected to result in a Material Adverse Effect.
(t) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(u) No
Consents Required. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of,
any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such
as have been already obtained or as may be required under the Securities Act, the rules and regulations promulgated under the Securities
Act, the rules of the Nasdaq Stock Market LLC, state securities laws or the rules of the Financial Industry Regulatory Authority, Inc.
(“FINRA”).
(v) Possession
of Licenses and Permits. The Company and its Subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business
now operated by them (including, without limitation, all such permits, licenses, approvals, consents and other authorizations required
by the FDA, the EMA, or any other federal, state, local or foreign agencies or bodies engaged in the regulation of clinical or preclinical
studies, pharmaceuticals, biologics, biohazardous substances or activities related to the business now operated by the Company and its
Subsidiaries), except where the failure so to possess would not, individually or in the aggregate, result in a Material Adverse Effect.
The Company and its Subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure
so to comply would not, individually or in the aggregate, result in a Material Adverse Effect. The Company has fulfilled and performed
all of its material obligations with respect to the Governmental Licenses and, to the knowledge of the Company, no event has occurred
which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment
of the rights of the Company as a holder of any permit, except where the failure to so fulfill or perform, or the occurrence of such event,
would not, individually or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, individually or in the aggregate, result in a Material Adverse Effect. Neither the Company nor its Subsidiaries
has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, individually or
in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
15
(w) Title
to Property. The Company and its Subsidiaries have good and marketable title to all real property owned by them and good title to
all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, restrictions or
encumbrances of any kind except such as (A) are described in the Registration Statement and the Prospectus or (B) do not, individually
or in the aggregate, 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 or its Subsidiaries; and all of the leases and subleases material to the business of the Company
and its Subsidiaries, considered as one enterprise, and under which the Company or its Subsidiaries holds properties described in the
Registration Statement or the Prospectus, are in full force and effect, and neither the Company nor any such Subsidiary has any notice
of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of
the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession
of the leased or subleased premises under any such lease or sublease.
(x) Title
to Intellectual Property. To the Knowledge of the Company and except in each case as disclosed in the Registration Statement and the
Prospectus, the Company owns or has valid, binding and enforceable licenses or other rights under the patents, patent applications, licenses,
inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other intellectual property necessary for, or used in the conduct, or
the proposed conduct, of the business of the Company in the manner described in the Registration Statement and the Prospectus (collectively,
the “Intellectual Property Rights”); to the knowledge of the Company, the patents, trademarks, and copyrights, if any, included
within the Intellectual Property Rights that are material to the conduct of the business of the Company are not invalid, unenforceable,
and are subsisting; other than as disclosed in the Registration Statement and the Prospectus, (A) the Company is not obligated to
pay a material royalty, grant a license to, or provide other material consideration to any third party in connection with the Intellectual
Property Rights, (B) the Company has not received any notice of any claim of infringement, misappropriation or conflict with any
asserted rights of others with respect to any of the Company’s drug candidates, services, processes or Intellectual Property Rights,
(C) to the knowledge of the Company, neither the sale nor use of any of the discoveries, inventions, drug candidates, services or
processes of the Company referred to in the Registration Statement or the Prospectus do or will, to the knowledge of the Company, infringe,
misappropriate or violate any right or valid patent claim of any third party, (D) none of the technology employed by the Company
has been obtained or is being used by the Company in material violation of any contractual obligation binding on the Company or, to the
Company’s knowledge, upon any of its officers, directors or employees or otherwise in violation of the rights of any persons, (E) to
the knowledge of the Company, no third party has any ownership right in or to any Intellectual Property Rights that are owned by the Company,
other than any co-owner of any patent constituting Intellectual Property Rights who is listed on the records of the U.S. Patent and Trademark
Office (the “USPTO”) and any co-owner of any patent application constituting Intellectual Property Rights who is named in
such patent application, and, to the knowledge of the Company, no third party has any ownership right in or to any Intellectual Property
Rights in any field of use that is exclusively licensed to the Company, other than any licensor to the Company of such Intellectual Property
Rights, (F) there is no material infringement by third parties of any Intellectual Property Rights, (G) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in
or to any Intellectual Property Rights, and (H) there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any Intellectual Property Rights. The Company is in compliance with
the terms of each agreement pursuant to which Intellectual Property Rights have been licensed to the Company, and all such agreements
are in full force and effect.
16
(y) Patents
and Patent Applications. All patents and patent applications owned by or licensed to the Company or under which the Company has rights
have, to the knowledge of the Company, been duly and properly filed and maintained; to the knowledge of the Company, the parties prosecuting
such patent applications have complied with their duty of candor and disclosure to the USPTO in connection with such applications; and
the Company is not aware of any facts required to be disclosed to the USPTO that were not disclosed to the USPTO and which would preclude
the grant of a patent in connection with any such application or would reasonably be expected to form the basis of a finding of invalidity
with respect to any patents that have issued with respect to such applications. To the Company’s knowledge, all patents and patent
applications owned by the Company and filed with the USPTO or any foreign or international patent authority (the “Company Patent
Rights”) and all patents and patent applications in-licensed by the Company and filed with the USPTO or any foreign or international
patent authority (the “In-licensed Patent Rights”) have been duly and properly filed; the Company believes it has complied
with its duty of candor and disclosure to the USPTO for the Company Patent Rights and, to the Company’s knowledge, the licensors
of the In-licensed Patent Rights have complied with their duty of candor and disclosure to the USPTO for the In-licensed Patent Rights.
(z) FDA
Compliance. Except as described in the Registration Statement and the Prospectus, the Company: (A) is and at all times has been
in material compliance with all statutes, rules or regulations of the FDA and other comparable Governmental Entities applicable to
the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer
for sale, storage, import, export or disposal of any product under development, manufactured or distributed by the Company (“Applicable
Laws”); (B) has not received any FDA Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence
or notice from the FDA or any Governmental Authority alleging or asserting material noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, exemptions, authorizations, permits and supplements or amendments thereto required by any such Applicable
Laws (“Authorizations”); (C) possesses all material Authorizations and such Authorizations are valid and in full force
and effect and the Company is not in material violation of any term of any such Authorizations; (D) has not received notice of any
claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from the FDA or any Governmental Authority
or third party alleging that any product operation or activity is in material violation of any Applicable Laws or Authorizations and has
no knowledge that the FDA or any Governmental Authority or third party is considering any such claim, litigation, arbitration, action,
suit, investigation or proceeding; (E) has not received notice that the FDA or any Governmental Authority has taken, is taking or
intends to take action to limit, suspend, modify or revoke any material Authorizations and has no knowledge that the FDA or any Governmental
Authority is considering such action; and (F) has filed, obtained, maintained or submitted all material reports, documents, forms,
notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations
and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially
complete and correct on the date filed (or were corrected or supplemented by a subsequent submission).
17
(aa) Tests
and Preclinical and Clinical Trials. The studies, tests and preclinical and clinical trials conducted by or, to the Company’s
knowledge, on behalf of the Company were and, if still ongoing, are being conducted in all material respects in accordance with experimental
protocols, procedures and controls pursuant to accepted professional scientific standards and all Authorizations and Applicable Laws,
including, without limitation, the Federal Food, Drug and Cosmetic Act and the rules and regulations promulgated thereunder (collectively,
“FFDCA”); the descriptions of the results of such studies, tests and trials contained in the Registration Statement and the
Prospectus are, to the Company’s knowledge, accurate and complete in all material respects and fairly present the data derived from
such studies, tests and trials; except to the extent disclosed in the Registration Statement and the Prospectus, the Company is not aware
of any studies, tests or trials, the results of which the Company believes reasonably call into question the study, test, or trial results
described or referred to in the Registration Statement and the Prospectus when viewed in the context in which such results are described
and the clinical state of development; and, except to the extent disclosed in the Registration Statement or the Prospectus, the Company
has not received any notices or correspondence from the FDA or any Governmental Entity requiring the termination or suspension of any
studies, tests or preclinical or clinical trials conducted by or on behalf of the Company, other than ordinary course communications with
respect to modifications in connection with the design and implementation of such trials, copies of which communications have been made
available to the Placement Agent.
(bb) Compliance
with Health Care Laws. The Company has operated and currently is in compliance with all applicable health care laws, rules and
regulations (except where such failure to operate or non-compliance would not, individually or in the aggregate, result in a Material
Adverse Effect), including, without limitation, (i) the Federal Food, Drug and Cosmetic Act (21 U.S.C. §§ 301 et seq.);
(ii) all applicable federal, state, local and all applicable foreign healthcare related fraud and abuse laws, including, without
limitation, the federal Anti-kickback Statute (42 U.S.C. § 1320a-7b(b)), the U.S. Physician Payments Sunshine Act (42 U.S.C. §
1320a-7h), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)),
all criminal laws relating to healthcare fraud and abuse, including but not limited to 18 U.S.C. Sections 286 and 287, the healthcare
fraud criminal provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42 U.S.C.
Section 1320d et seq.), the exclusion laws (42 U.S.C. § 1320a-7), and the civil monetary penalties law (42 U.S.C. § 1320a-7a);
(iii) HIPAA, as amended by the Health Information Technology for Economic Clinical Health Act (42 U.S.C. Section 17921 et seq.);
(iv) the regulations promulgated pursuant to such laws; and (v) any other similar local, state, federal, or foreign laws (collectively,
the “Health Care Laws”). Neither the Company, nor to the Company’s knowledge, any of its officers, directors, employees
or agents have engaged in activities which are, as applicable, cause for false claims liability, civil penalties, or mandatory or permissive
exclusion from Medicare, Medicaid, or any other state or federal healthcare program. The Company has not received written notice or other
correspondence of any claim, action, suit, audit, survey, proceeding, hearing, enforcement, investigation, arbitration or other action
from any court or arbitrator or governmental or regulatory authority or third party alleging that any product operation or activity is
in violation of any Health Care Laws, and, to the Company’s knowledge, no such claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action is threatened. The Company is not a party to and does not have any ongoing reporting obligations
pursuant to any corporate integrity agreement, deferred prosecution agreement, monitoring agreement, consent decree, settlement order,
plan of correction or similar agreement imposed by any governmental or regulatory authority. Additionally, neither the Company, nor to
the Company’s knowledge, any of its employees, officers or directors, has been excluded, suspended or debarred from participation
in any U.S. state or federal health care program or human clinical research or, to the knowledge of the Company, is subject to a governmental
inquiry, investigation, proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
18
(cc) Environmental
Laws. Except as described in the Registration Statement and the Prospectus or would not, individually or in the aggregate, result
in a Material Adverse Effect, (A) neither the Company nor any Subsidiary is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its Subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are
no pending or, to the knowledge of the Company threatened, administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company
or any Subsidiary and (D) to the knowledge of the Company, there are no events or circumstances that would reasonably be expected
to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity,
against or affecting the Company or any Subsidiary relating to Hazardous Materials or any Environmental Laws.
(dd) Accounting
Controls and Disclosure Controls. The Company and each of its Subsidiaries maintain effective internal control over financial reporting
(as defined under Rule 13a 15 and 15d 15 under the rules and regulations of the Commission under the Exchange Act) and a system
of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with
management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; (D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) the interactive data in eXtensible
Business Reporting Language incorporated by reference in the Registration Statement and the Prospectus fairly presents the information
called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
Except as described in the Registration Statement and the Prospectus, since the end of the Company’s most recent audited fiscal
year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated)
and (2) no change in the Company’s internal control over financial reporting that has materially adversely affected, or is
reasonably likely to materially adversely affect, the Company’s internal control over financial reporting. The Company and each
of its Subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule 13a 15 and Rule 15d
15 under the Exchange Act) that are designed to ensure that information required to be disclosed by the Company in the reports that 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, and is accumulated and communicated to the Company’s management, including its principal executive officer
or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
19
(ee) Payment
of Taxes. All United States federal income tax returns of the Company and its Subsidiaries required by law to be filed have been filed
and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which
appeals have been or will be promptly taken and as to which adequate reserves have been provided in conformity with GAAP. The United States
federal income tax returns of the Company through the fiscal year ended December 31, 2024 have been settled and no assessment in
connection therewith has been made against the Company. The Company and its Subsidiaries have filed all other tax returns that are required
to have been filed by them pursuant to applicable foreign, state, local or other law except insofar as the failure to file such returns
would not result in a Material Adverse Effect, and have paid all taxes due pursuant to such returns or pursuant to any assessment received
by the Company and its Subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves
have been established by the Company. The charges, accruals and reserves on the books of the Company in respect of any income and corporation
tax liability for any years not finally determined are, in conformity with GAAP, adequate to meet any assessments or re-assessments for
additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result in a Material
Adverse Effect.
(ff) Insurance.
The Company and its Subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in
such amounts and covering such risks as is generally maintained by similarly-sized companies of established repute engaged in the same
or similar business, and all such insurance is in full force and effect. The Company has no reason to believe that it or its Subsidiaries
will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result
in a Material Adverse Effect. Neither of the Company nor its Subsidiaries has been denied any insurance coverage which it has sought or
for which it has applied.
20
(gg) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Shares as herein contemplated and the application
of the net proceeds therefrom as described in the Registration Statement and the Prospectus will not be required, to register as an “investment
company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(hh) Absence
of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly
or indirectly, any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or to result in a violation of
Regulation M under the Exchange Act.
(ii) Foreign
Corrupt Practices Act. None of the Company, its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company or its Subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the
FCPA and the Company has and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(jj) Money
Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and
no action, suit or proceeding by or before any Governmental Entity involving the Company or its Subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(kk) OFAC.
None of the Company, its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or representative
of the Company or its Subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions
administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s
Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory
that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Shares, or lend,
contribute or otherwise make available such proceeds to any Subsidiary, joint venture partners or other Person, to fund any activities
of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in
any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter,
advisor, investor or otherwise) of Sanctions.
21
(ll) Statistical
and Market-Related Data. Any statistical and market-related data included in the Registration Statement or the Prospectus are based
on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate in all material respects
and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(mm) Privacy
and Data Protection. The Company and its Subsidiaries have operated their business in a manner compliant in all material respects
with all United States federal, state, local and non-United States privacy, data security and data protection laws and regulations applicable
to the Company’s collection, use, transfer, protection, disposal, disclosure, handling, storage and analysis of personal data.
The Company and its Subsidiaries have been and are in compliance in all material respects with internal policies and procedures designed
to ensure the integrity and security of the data collected, handled or stored in connection with its business; the Company and its Subsidiaries
have been and are in compliance in all material respects with internal policies and procedures designed to ensure compliance with the
Health Care Laws that govern privacy and data security and take, and have taken reasonably appropriate steps designed to assure compliance
with such policies and procedures. The Company and its Subsidiaries have taken reasonable steps to maintain the confidentiality of its
personally identifiable information, protected health information, consumer information and other confidential information of the Company,
its Subsidiaries and any third parties in its possession (“Sensitive Company Data”). The tangible or digital information
technology systems (including computers, screens, servers, workstations, routers, hubs, switches, networks, data communications lines,
technical data and hardware), software and telecommunications systems used or held for use by the Company and its Subsidiaries (the “Company
IT Assets”) are adequate and operational for, in accordance with their documentation and functional specifications, the business
of the Company and its Subsidiaries as now operated and as currently proposed to be conducted as described in the Registration Statement
and the Prospectus. The Company and its Subsidiaries have used reasonable efforts to establish, and have established, commercially reasonable
disaster recovery and security plans, procedures and facilities for the business consistent with industry standards and practices in
all material respects, including, without limitation, for the Company IT Assets and data held or used by or for the Company and its Subsidiaries.
The Company and its Subsidiaries have not, to the Company’s knowledge, suffered or incurred any security breaches, compromises
or incidents with respect to any Company IT Asset or Sensitive Company Data, except where such breaches, compromises or incidents would
not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect; and, to the Company’s knowledge,
there has been no unauthorized or illegal use of or access to any Company IT Asset or Sensitive Company Data by any unauthorized third
party. The Company and its Subsidiaries have not been required to notify any individual of any information security breach, compromise
or incident involving Sensitive Company Data.
(nn) No
Broker Fees. Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the Company or the Placement Agent for a brokerage commission, finder’s
fee or other like payment in connection with the offering of the Shares contemplated hereby.
22
(oo) Transactions
With Affiliates and Employees. Except as set forth in the Prospectus, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(pp) 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 as a result of the Purchasers and the Company fulfilling their obligations or exercising
their rights under this Agreement, and any other documents or agreements executed in connection with the transactions contemplated hereunder.
(qq) No
Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
this offering of the Shares to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval
provisions of any trading market or exchange on which any of the securities of the Company are listed or designated.
(rr) 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 Subsidiaries or their financial results
or prospects.
(ss) 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 request.
23
(tt) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company Act of
1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of
a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(uu) FINRA
Affiliation. To the Company’s knowledge, no officer, director or any beneficial owner of 10% or more of the Company’s
unregistered securities has any direct or indirect affiliation or association with any FINRA member (as determined in accordance with
the rules and regulations of FINRA) that is participating in the offering of the Shares. The Company will advise the Placement Agent
and its counsel if it learns that any officer, director or owner of 10% or more of (i) the Company’s outstanding shares of
Common Stock or (ii) 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 is or becomes
an affiliate or associated person of a FINRA member firm.
(vv) Board
of Directors. The Board of Directors is comprised of the persons set forth under the heading of the Company’s most recent Annual
Report on Form 10-K, as amended, captioned “Directors, Executive Officers and Corporate Governance.” The qualifications
of the persons serving as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act of 2002
and the rules promulgated thereunder applicable to the Company and the rules of the Nasdaq Stock Market LLC. At least one member
of the Board of Directors qualifies as a “financial expert” as such term is defined under the Sarbanes-Oxley Act of 2002
and the rules promulgated thereunder and the rules of the Nasdaq Stock Market LLC. In addition, at least a majority of the
persons serving on the Board of Directors qualify as “independent” as defined under the rules of the Nasdaq Stock Market
LLC.
(ww) Cybersecurity.
To the knowledge of the Company, (i)(x) there has been no security breach or other compromise of or relating to any of the Company’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its
respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology
(collectively, “IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no
knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT
Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data
from unauthorized use, access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material
Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain
and protect its material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems
and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry
standards and practices.
24
(xx) ERISA
Compliance. The Company and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance
in all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company or any of its subsidiaries, any
member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the “Code”) of which the Company or such subsidiary
is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect
to any “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates.
No “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if
such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined
under ERISA). Neither the Company, its Subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each employee benefit plan established or maintained by the Company, its
Subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
(yy) No
Rights to Purchase Preferred Stock. The issuance and sale of the Shares as contemplated hereby will not cause any holder of any shares
of capital stock, securities convertible into or exchangeable or exercisable for capital stock or options, warrants or other rights to
purchase capital stock or any other securities of the Company to have any right to acquire any shares of preferred stock of the Company.
(zz) Acknowledgment
Regarding Each Purchaser's Purchase of Securities. The Company acknowledges and agrees that each Purchaser 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 each Purchaser is not 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 its
representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental
to such Purchaser's 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.
(aaa) Stamp
or Other Tax. No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are
payable by or on behalf of the Placements Agents or the Purchasers are payable in the United States or taxing authority thereof or therein
in connection with the sale and delivery by the Company of the Securities to or for the sale and delivery by the Securities to the Purchasers.
25
(bbb) No
Disagreements with Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably anticipated
by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company, and the Company
is current with respect to any fees owed to its accountants and lawyers which could affect the Company's ability to perform any of its
obligations under any of the Transaction Documents or the Placement Agency Agreement.
Any certificate signed by
any officer of the Company or any of its subsidiaries and delivered to any Purchaser, the Placement Agent or counsel for the Placement
Agent in connection with the purchase and sale of the Shares shall be deemed a representation and warranty by the Company to each Purchaser
and the Placement Agent as to the matters covered thereby.
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 Pre-Funded Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3) or (a)(7), under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under
the Securities Act.
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(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.
(f) 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.
(g) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first
received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms
of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, (A) 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, 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 and (B) in the case of a Purchaser
that has implemented internal information barriers pursuant to information controls policy to “wall-off” certain trading
personnel, the representations set forth above shall only apply to such walled-off trading personnel.
(h) 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.
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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 Shares
and Pre-Funded Warrant Shares. The Shares shall be issued free of legends. If all or any portion of a Pre-Funded Warrant is exercised
at a time when there is an effective registration statement to cover the issuance or resale of the Pre-Funded Warrant Shares or if the
Pre-Funded Warrant is exercised via cashless exercise, the Pre-Funded 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 Pre-Funded Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Pre-Funded
Warrant Shares, the Company shall immediately notify the holders of the Pre-Funded Warrants in writing that such registration statement
is not then effective and thereafter shall promptly notify such holders when the registration statement is effective again and available
for the sale or resale of the Pre-Funded Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability
of the Company to issue, or any Purchaser to sell, any of the Pre-Funded Warrant Shares in compliance with applicable federal and state
securities laws). The Company shall use best efforts to keep a registration statement (including the Registration Statement) registering
the issuance or resale of the Pre-Funded Warrant Shares effective during the term of the Pre-Funded Warrants.
4.2 Furnishing
of Information. Until no Purchaser owns Securities, the Company covenants to maintain the registration of the Common Stock under
Section 12(b) or 12(g) of the Exchange Act and timely file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the
Company is not then subject to the reporting requirements of the Exchange Act.
4.3 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.
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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 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 Subsidiaries or any of their respective
officers, directors, 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, or without the prior consent of each Purchaser,
with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) 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 Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall
not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees,
Affiliates or agents, including, without limitation, the Placement Agent, or a duty to the Company, any of its 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 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.
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4.7 Use
of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder as described in the Prospectus Supplement
and shall not use such proceeds: (a) for the redemption of any Common Stock or Common Stock Equivalents, (b) for the settlement
of any outstanding litigation or (c) 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 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 the Company or by any stockholder of the Company who is not an Affiliate of such Purchaser
Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material
breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or
understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal
securities laws or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or
willful misconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant
to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and, except with respect to direct claims brought
by the Company, the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable
to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that
(x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable
period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel,
a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case
the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not
be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the extent that a
loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants
or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this
Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when
bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar
right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
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4.9 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 Pre-Funded Warrant Shares pursuant to any exercise of the Pre-Funded Warrants.
4.10 Listing
of Common Stock. The Company hereby agrees to use 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 Pre-Funded Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Pre-Funded 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 Pre-Funded Warrant Shares, and will take such other action as is necessary
to cause all of the Shares and Pre-Funded Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible.
The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market
and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the
Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust
Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust
Company or such other established clearing corporation in connection with such electronic transfer.
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4.11 Reserved.
4.12 Subsequent
Equity Sales.
(a) From
the date hereof until thirty (30) days following the Closing Date (the “Restricted Period”), without the prior written consent
of the Placement Agent, 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.
(b) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.
4.13 Equal
Treatment of Purchasers. No consideration (including any modification of the Transaction Documents) 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.
4.14 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 (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 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, (A) 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, 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, and (B) in the case of a Purchaser that has implemented internal information barriers pursuant to information
controls policy to “wall-off” certain trading personnel, this Section 4.14 shall apply only with respect to activities
of such walled-off trading personnel.
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4.15 Capital
Changes. Until the six (6) month anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock
split or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority in interest of the
Shares and Pre-Funded Warrants other than a reverse stock split that is required, in the good faith determination of the Board of Directors,
to maintain the listing of the Common Stock on the Trading Market.
4.16 Exercise
Procedures. The form of Notice of Exercise included in the Pre-Funded Warrants set forth the totality of the procedures required
of the Purchasers in order to exercise the Pre-Funded Warrants. No additional legal opinion, other information or instructions shall
be required of the Purchasers to exercise their Pre-Funded Warrants. Without limiting the preceding sentences, no ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
form be required in order to exercise the Pre-Funded Warrants. The Company shall honor exercises of the Pre-Funded Warrants and shall
deliver Pre-Funded Warrant Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been
consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such
termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-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.
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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. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K.
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 Warrants
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 at least 50.1% in interest 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” (other than in respect of a transfer pursuant
to an effective registration statement).
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 this Agreement and the representations, warranties and covenants of the Purchasers in this Agreement. 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.
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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 to the extent the same would result in the application of the laws of another jurisdiction. 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 (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) or other transmission method, 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.
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5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any
of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document
and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission of an exercise
of a Pre-Funded Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded
exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and
the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Pre-Funded Warrant (including,
issuance of a replacement warrant certificate evidencing such restored right).
5.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law
would be adequate.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a
Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or
any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or
are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
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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 Trading Day or
a Business Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day or Business Day, as the
case may be.
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.
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5.21 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
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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.
Elicio
Therapeutics, Inc.
Address for Notice:
By:
Name:
E-Mail:
Title:
With a copy to (which shall not constitute notice):
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER SIGNATURE PAGES TO ELTX 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 Pre-Funded 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%
EIN Number: ____________________
¨
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 by the Closing Date 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]
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EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2619637d1_ex10-2.htm · Sequence: 4
Exhibit 10.2
PLACEMENT AGENCY AGREEMENT
July 1, 2026
Titan Partners Group LLC,
a division of American Capital Partners, LLC
4 World Trade Center, 49th Floor
New York, NY 10007
As lead placement agent
Ladies and Gentlemen:
Introductory. This
Placement Agency Agreement (this “Agreement”) sets forth the terms upon which Titan Partners Group LLC, a division
of American Capital Partners, LLC (“Titan Partners”) and B Riley Securities, Inc. (“B Riley”
and collectively with Titan Partners, the “Placement Agents”), shall be engaged by Elicio Therapeutics, Inc.,
a Delaware corporation (the “Company”), to act as the lead Placement Agent in connection with the registered direct
offering (hereinafter referred to as the “Placement”) of shares of common stock, par value $0.01 per share (the “Common
Stock” and the Common Stock offered in the Placement, the “Placement Securities”), of the Company.
The terms of the Placement
and the Placement Securities shall be mutually agreed upon by the Company and the purchasers (each, a “Purchaser” and
collectively, the “Purchasers”) and nothing herein constitutes that the Placement Agents would have the power or authority
to bind the Company or any Purchaser or an obligation for the Company to issue any Placement Securities or complete the Placement. The
date of the closing of the Placement shall be referred to herein as the “Closing Date.” The Company expressly acknowledges
and agrees that the Placement Agents’ obligations hereunder are on a reasonable best efforts basis only and that the execution of
this Agreement does not constitute a commitment by the Placement Agents to purchase the Placement Securities and does not ensure the successful
placement of the Placement Securities or any portion thereof or the success of the Placement Agents with respect to securing any other
financing on behalf of the Company. Following the prior written consent of the Company, the Placement Agents may retain other brokers
or dealers to act as sub-agents or selected-dealers on its behalf in connection with the Placement. The sale of the Placement Securities
to any Purchaser will be evidenced by the securities purchase agreement (the “Purchase Agreement”) by and among the
Company and such Purchasers in the form of Exhibit A attached hereto. Capitalized terms that are not otherwise defined herein
have the meanings given to such terms in the Purchase Agreement. Prior to the signing of any Purchase Agreement, executive officers of
the Company will be available upon reasonable notice and during normal business hours to answer inquiries from prospective Purchasers.
SECTION 1. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.
A. Representations of the
Company. With respect to the Placement Securities, each of the representations and warranties (together with any related disclosure
schedules thereto) and covenants made by the Company to the Purchasers in the Purchase Agreement in connection with the Placement, is
hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, as of the date of this Agreement
and as of each Closing Date, hereby made to, and in favor of, the Placement Agents. In addition to the foregoing, the Company represents
and warrants that there are no affiliations with any FINRA member firm participating in the Placement among the Company’s officers,
directors or, to the knowledge of the Company, any ten percent (10.0%) or greater stockholder of the Company.
B. Covenants of the Company.
The Company covenants and agrees to continue to retain (i) a firm of independent PCAOB registered public accountants for a period
of at least five (5) years after the Closing Date and (ii) a competent transfer agent with respect to the Common Stock for a
period of five (5) years after the Closing Date.
SECTION 2. REPRESENTATIONS
OF THE PLACEMENT AGENTS. Each Placement Agent represents and warrants that it (i) is a member in good standing of the Financial
Industry Regulatory Authority (“FINRA”), (ii) is registered as a broker/dealer under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), (iii) is licensed as a broker/dealer under the laws of the United States
of America, applicable to the offers and sales of the Placement Securities by the applicable Placement Agent, (iv) is and will be
a corporate body validly existing under the laws of its place of incorporation, and (v) has full power and authority to enter into
and perform its obligations under this Agreement. The Placement Agents will immediately notify the Company in writing of any change in
its status with respect to subsections (i) through (v) above. The Placement Agents covenant that they will use their respective
reasonable best efforts to conduct the Placement hereunder in compliance with the provisions of this Agreement and the requirements of
applicable law.
SECTION 3. COMPENSATION.
A. Cash Compensation.
In consideration of the services to be provided for hereunder, the Company shall pay to the Placement Agent or their respective designees a total cash
fee equal to seven percent (7.0%) of the gross proceeds from the Placement of the total amount of Placement Securities sold (collectively,
the “Cash Fee”); provided, however, that, with respect to gross proceeds paid by any current director or current officer
of the Company, or any entities to which such director or officer may be affiliated, the Cash Fee shall be reduced to five percent (5.0%)
of the gross proceeds of Placement Securities sold thereto; provided, further, however that Titan Partners shall be allocated seventy
percent (70.0%) and B. Riley shall be allocated thirty percent (30.0%) of the Cash Fee.
B. Non-Accountable Expense.
In addition to the Cash Fee, the Company shall pay to Titan Partners or their respective designees a non-accountable expense allowance
equal to $75,000 (the “Non-Accountable Expense Allowance”), which shall be deemed earned upon the date of this Agreement.
The Non-Accountable Expense Allowance is in addition to any accountable expenses reimbursable to the Placement Agents under Section 4
hereof.
C. Reduction of Compensation.
The Placement Agents reserve the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event
that a determination shall be made by FINRA to the effect that the Placement Agents’ aggregate compensation is in excess of FINRA
Rules or that the terms thereof require adjustment.
SECTION 4. EXPENSES.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including, without limitation: (i) all expenses incident to the issuance, delivery
and qualification of the Placement Securities (including all printing and engraving costs); (ii) all fees and expenses of the registrar
and transfer agent for the Common Stock; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Placement Securities; (iv) all fees and expenses of the Company’s counsel, independent public or certified
public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates
of experts), and the Prospectus, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, reasonable
attorneys’ fees and expenses incurred by the Company in connection with qualifying or registering (or obtaining exemptions from
the qualification or registration of) all or any part of the Placement Securities for offer and sale under the state securities or blue
sky laws or the securities laws of any other country; (vii) the fees and expenses associated with including the Placement Securities
on the Trading Market; (viii) the fees and expenses of the Placement Agents, including up to $75,000 for the fees and expenses of
Alston & Bird LLP, counsel to the Placement Agents. The Placement Agents may deduct from the net proceeds of the Offering payable
to the Company on each Closing Date, the expenses set forth herein to be paid by the Company to the Placement Agents, to the extent not
already paid.
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Notwithstanding anything to
the contrary in this Section 4, the aggregate amount of fees, expenses and disbursements of the Placement Agents (including the fees
and disbursements of counsel for the Placement Agents) that the Company shall be obligated to pay or reimburse under this Section 4,
shall not exceed $75,000.
SECTION 5. INDEMNIFICATION.
A. To the extent permitted by
law, with respect to the Placement Securities, the Company will indemnify the Placement Agents and their respective affiliates, stockholders,
directors, officers, employees, members and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable
fees and expenses of counsel), relating to or arising out of its activities hereunder or pursuant to this Agreement or the Purchase Agreement,
including, without limitation, any failure by the Company to obtain any required consent, except to the extent that any losses, claims,
damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment (not subject to appeal) by a court of law
to have resulted primarily and directly from a Placement Agent’s willful misconduct or gross negligence in performing the services
described herein.
B. Promptly after receipt by
a Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which a Placement Agent is entitled
to indemnity hereunder, a Placement Agent will promptly notify the Company in writing of such claim or of the commencement of such action
or proceeding, but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except and
only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses. If the Company so elects
or is requested by a Placement Agent, the Company will assume the defense of such action or proceeding and will employ counsel reasonably
satisfactory to the applicable Placement Agent and will pay the fees and expenses of such counsel. Notwithstanding the preceding sentence,
the applicable Placement Agent will be entitled to employ its own counsel separate from counsel for the Company and from any other party
in such action if counsel for the applicable Placement Agent reasonably determines that it would be inappropriate under the applicable
rules of professional responsibility for the same counsel to represent both the Company and the applicable Placement Agent. In such
event, the reasonable fees and disbursements of no more than one such separate counsel will be paid by the Company, in addition to fees
of local counsel. The Company will have the right to settle the claim or proceeding, provided that the Company will not settle any such
claim, action or proceeding without the prior written consent of the applicable Placement Agent, which will not be unreasonably withheld.
C. The Company agrees to notify
the Placement Agents promptly of the assertion against it or any other person of any claim or the commencement of any action or proceeding
relating to a transaction contemplated by this Agreement.
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D. If for any reason the foregoing
indemnity is unavailable to the Placement Agents or insufficient to hold the Placement Agents harmless, then the Company shall contribute
to the amount paid or payable by the Placement Agents as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Placement Agents on the other,
but also the relative fault of the Company on the one hand and the Placement Agents on the other that resulted in such losses, claims,
damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect of losses,
claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred in defending
any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement Agents’ share of the liability
hereunder shall not be in excess of the amount of fees actually received, or to be received, by the Placement Agents under this Agreement
(excluding any amounts received as reimbursement of expenses incurred by the Placement Agents).
E. These indemnification provisions
shall remain in full force and effect whether or not the transaction contemplated by this Agreement is completed and shall survive the
termination of this Agreement, and shall be in addition to any liability that the Company might otherwise have to any indemnified party
under this Agreement or otherwise.
SECTION 6. ENGAGEMENT
TERM. The Placement Agents’ engagement hereunder will be until the later of (i) July 13, 2026 and (ii) the final
Closing Date under the Purchase Agreement. The date of termination of this Agreement is referred to herein as the “Termination
Date.” In the event, however, in the course of the Placement Agents’ performance of due diligence it deems, it necessary
to terminate the engagement, the Placement Agents may do so prior to the Termination Date. The Company may elect to terminate the engagement
hereunder for any reason prior to the Termination Date but will remain responsible for fees pursuant to Section 3 hereof with respect
to the Placement Securities if sold in the Placement. Notwithstanding anything to the contrary contained herein, the provisions concerning
the Company’s obligation to pay any fees actually earned pursuant to Section 3 hereof and the provisions concerning confidentiality,
indemnification and contribution contained herein will survive any expiration or termination of this Agreement. If this Agreement is terminated
prior to the completion of the Placement, all fees due to the Placement Agents as set forth in Section 3 shall be paid by the Company
to the Placement Agents on or before the Termination Date (in the event such fees are earned or owed as of the Termination Date). The
Placement Agents agree not to use any confidential information concerning the Company provided to the Placement Agents by the Company
for any purposes other than those contemplated under this Agreement.
SECTION 7. PLACEMENT
AGENT INFORMATION. The Company agrees that any information or advice rendered by the Placement Agents in connection with this engagement
is for the confidential use of the Company only in its evaluation of the Placement and, except as otherwise required by law, the Company
will not disclose or otherwise refer to the advice or information in any manner without the Placement Agents’ prior written consent.
SECTION 8. NO
FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by any person or
entity not a party hereto, except those entitled hereto by virtue of the indemnification provisions hereof. The Company acknowledges and
agrees that the Placement Agents are not and shall not be construed as fiduciaries of the Company and shall have no duties or liabilities
to the equity holders or the creditors of the Company or any other person by virtue of this Agreement or the retention of the Placement
Agents hereunder, all of which are hereby expressly waived.
SECTION 9. CLOSING.
The obligations of the Placement Agents, and the closing of the sale of the Placement Securities hereunder are subject to the accuracy,
when made and on the Closing Date, of the representations and warranties on the part of the Company contained herein and in the Purchase
Agreement, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions,
except as otherwise disclosed to and acknowledged and waived by Titan Partners:
A. All corporate proceedings
and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement, the Placement
Securities, and all other legal matters relating to this Agreement and the transactions contemplated hereby with respect to the Placement
Securities shall be reasonably satisfactory in all material respects to Titan Partners.
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B. The Placement Agents shall
have received the following on each Closing Date: (i) the favorable opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel to the Company, and a written statement providing certain “10b-5” negative assurances, dated such Closing Date and
addressed to the Placement Agents, in form and substance reasonably satisfactory to Titan Partners and (ii) Clark + Elbing LLP,
special counsel for the Company with respect to intellectual property matters, dated such Closing Date and addressed to the Placement
Agents, in form and substance reasonably satisfactory Titan Partners.
C. The Placement Agents shall
have received (i) a customary Officers’ Certificate, executed and delivered by the Company’s executive officers, as to
the accuracy of the representations and warranties contained in the Purchase Agreement, (ii) a Chief Financial Officer’s Certificate
regarding certain financial information included in the Registration Statement and Prospectus and (iii) a Secretary’s Certificate
executed and delivered by the Company’s corporate secretary certifying that (A) the Company’s charter documents are true
and complete, have not been modified and are in full force and effect; (B) that the resolutions of the Company’s Board of Directors
relating to the Placement are in full force and effect and have not been modified; (C) as to the incumbency of the officers of the
Company and (D) other customary certifications reasonably satisfactory to Titan Partners.
E. The Placement Agents shall
have received an executed FINRA questionnaire from each of the Company and the Company’s executive officers, directors and 10% or
greater securityholders.
F. The Placement Agents shall
have received, on or before the Closing Date, executed copies of the Lock-Up Agreement, the form of which is attached hereto as Exhibit B,
from each of the persons listed on Exhibit C.
G. The Placement Agents shall
have received on each Closing Date satisfactory evidence of the good standing of the Company and its subsidiaries in their respective
jurisdictions of organization and their good standing as foreign corporations in such other jurisdictions as Titan Partners may reasonably
request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions,
dated no more than one (1) business day prior to such Closing Date.
H. The Placement Securities
shall be registered under the Exchange Act. The Company shall have taken no action designed to, or likely to have the effect of terminating
the registration of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading
Market or other applicable U.S. national exchange, nor has the Company received any information suggesting that the Commission or the
Trading Market or other U.S. applicable national exchange is contemplating terminating such registration or listing. In addition, the
Company shall have submitted a listing of additional shares notification form to the Nasdaq Stock Market LLC (the “Exchange”)
with respect to the Placement Shares and shall have received no objection thereto from the Exchange.
I. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would,
as of the Closing Date, prevent the issuance or sale of the Placement Securities or materially and adversely affect or potentially and
adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the
Placement Securities or materially and adversely affect or potentially and adversely affect the business or operations of the Company.
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J. The Company shall have entered
into a Purchase Agreement with each of the Purchasers of the Placement Securities and such agreements shall be in full force and effect
and shall contain representations, warranties and covenants of the Company as agreed upon between the Company and the Purchasers.
K. FINRA shall have raised no
objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the Company shall, if requested
by the Placement Agents, make or authorize Placement Agents’ counsel to make on the Company’s behalf, any filing with the
FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Placement and pay all filing fees required in
connection therewith.
If any of the conditions specified
in this Section 9 shall not have been fulfilled when and as required by this Agreement, all obligations of the Placement Agents hereunder
may be cancelled by Titan Partners at, or at any time prior to, any Closing Date. Notice of such cancellation shall be given to the Company
in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
SECTION 10. GOVERNING
LAW. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of New York applicable to
agreements made and to be performed entirely in such State, without regard to principles of conflicts of law if the same would result
in the application of the laws of another jurisdiction. This Agreement may not be assigned by either party without the prior written consent
of the other party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors
and permitted assigns. Any right to trial by jury with respect to any dispute arising under this Agreement or any transaction or conduct
in connection herewith is waived. Any dispute arising under this Agreement may be brought into the courts of the State of New York or
into the Federal Court located in New York, New York and, by execution and delivery of this Agreement, the Company hereby accepts for
itself and in respect of its property, generally and unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by delivering a copy thereof
via overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and 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 manner permitted by law. If either party shall commence an action or proceeding
to enforce any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party
for its attorney's fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
SECTION 11. ENTIRE
AGREEMENT/MISCELLANEOUS. This Agreement embodies the entire agreement and understanding between the parties hereto, and supersedes
all prior agreements and understandings, relating to the subject matter hereof. If any provision of this Agreement is determined to be
invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision
of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except
by an instrument in writing signed by both the Placement Agent and the Company. The representations, warranties, agreements and covenants
contained herein shall survive the Closing Date of the Placement and delivery of the Placement Securities. This Agreement may be executed
in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign
the same counterpart. In the event that any signature is delivered by facsimile transmission or a .pdf format file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect
as if such facsimile or .pdf signature page were an original thereof.
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SECTION 12. 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 date of transmission, if such notice or communication is sent to the email
address specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the
next business day after the date of transmission, if such notice or communication is sent to the email address on the signature pages attached
hereto on a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the third business
day following the date of mailing, if sent by U.S. internationally recognized air courier service, or (d) upon actual receipt by
the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature
pages hereto.
SECTION 13. PRESS
ANNOUNCEMENTS. The Company agrees that the Placement Agents shall, on and after the Closing Date, have the right to reference the
Placement and the Placement Agents’ roles in connection therewith in each Placement Agent’s marketing materials and on its
website and to place advertisements in financial and other newspapers and journals, in each case at its own expense.
SECTION 14. STANDSTILL.
Without the prior written
consent of Titan Partners, from the date hereof until thirty (30) days after the Closing Date (the “Restricted Period”),
neither the Company nor any subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance
of any Common Stock or Common Stock Equivalents or (ii) file any registration statement or any 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. Notwithstanding
the foregoing, this Section 14 shall not apply in respect of an Exempt Issuance.
For purposes of this Agreement,
“Exempt Issuance” means the issuance of (a) the Placement Shares to be sold under the Purchase Agreement; (b) any
shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a convertible security outstanding
on the date hereof and referred to in the Registration Statement and the Prospectus; (c) any shares of Common Stock issued or options
to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement
and the Prospectus; (d) any shares of Common Stock issued pursuant to any existing non-employee director stock plan or dividend reinvestment
plan referred to in the Registration Statement and the Prospectus; (e) the filing by the Company of any registration statement on
Form S-8 or a successor form thereto; (f) facilitating the establishment of a trading plan on behalf of a shareholder, officer
or director of the Company pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of shares of Common Stock, provided that
(i) such plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public
announcement or filing under the Exchange Act is required to be made by the Company regarding the establishment of such plan, such announcement
or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period;
and (g) shares of Common Stock or other securities issued in connection with a strategic transaction (including strategic alliances,
commercial lending relationships, joint ventures, acquisitions and licenses), provided that the aggregate number of shares issued pursuant
to this clause (g) (on an as-converted or as-exercised basis, as the case may be) shall not exceed five percent (5%) of the total
number of outstanding shares of Common Stock immediately following the issuance and sale of the Shares.
[Signature page follows]
7
Please confirm that the foregoing correctly sets
forth our agreement by signing and returning to the Placement Agents the enclosed copy of this Agreement.
Very truly yours,
TITAN PARTNERS GROUP LLC,
A DIVISION OF AMERICAN CAPITAL PARTNERS, LLC
By:
/s/ Adam Sands
Name: Adam Sands
Title: Authorized Representative
Address for notice:
Titan Partners Group LLC, a division of American Capital Partners,
LLC
4 World Trade Center, 49th Floor
New York, NY 10007
Attention: Adam Sands
Email: [***]
Accepted and Agreed to as of the date first written above:
ELICIO THERAPEUTICS, INC.
By:
/s/ Robert Connelly
Name: Robert Connelly
Title: CEO
Address for notice:
Elicio Therapeutics, Inc.
451 D Street, 5th Floor, Suite 501
Boston, MA 02210
Attention: Legal Department, General Counsel
Email: [***]
[Signature Page to Placement Agency Agreement]
Exhibit A
Form of
Securities Purchase Agreement
Exhibit B
FORM OF LOCK-UP AGREEMENT
LOCK-UP AGREEMENT
July , 2026
Re: Securities Purchase Agreement, dated as
of July , 2026 (the “Purchase Agreement”),
between Elicio Therapeutics, Inc. (the “Company”) and each purchaser identified on the signature pages thereto.
Ladies and Gentlemen:
Capitalized terms used but
not defined in this letter agreement (this “Letter Agreement”) shall have the meanings set forth in the Purchase Agreement.
The undersigned irrevocably agrees with the Company that, from the date hereof until thirty (30) days after the Closing Date (such period,
the “Restriction Period”) the undersigned will not offer, sell, contract to sell, hypothecate, pledge or otherwise
dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether
by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any Affiliate of the
undersigned or any person in privity with the undersigned or any Affiliate of the undersigned), directly or indirectly, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), with respect to, any shares of Common Stock of the Company or
securities convertible, exchangeable or exercisable into, shares of Common Stock of the Company beneficially owned, held or hereafter
acquired by the undersigned (the “Securities”) or make any demand for or exercise any right or cause to be filed a
registration, including any amendments thereto, with respect to the registration of any shares of Common Stock or Common Stock Equivalents
or publicly disclose the intention to do any of the foregoing. Beneficial ownership shall be calculated in accordance with Section 13(d) of
the Exchange Act. In order to enforce this covenant, the Company shall impose irrevocable stop-transfer instructions preventing the transfer
agent of the Company from effecting any actions in violation of this Letter Agreement.
Notwithstanding the foregoing,
and subject to the conditions below, the undersigned may transfer the Securities provided that (1) the Company receives a signed
lock-up letter agreement (in the form of this Letter Agreement) for the balance of the Restriction Period from each donee, trustee, distributee,
or transferee, as the case may be, prior to such transfer, (2) any such transfer shall not involve a disposition for value, (3) such
transfer is not required to be reported with the Securities and Exchange Commission (the “SEC”) in accordance with
the Exchange Act and no report of such transfer shall be made voluntarily other than, in the case of clauses (i), (ii), (iii), (vi), (ix) and
(x) below, any such required filing shall clearly indicate in the footnotes thereto that the filing relates to circumstances described
in such a clause, and (4) neither the undersigned nor any donee, trustee, distributee or transferee, as the case may be, otherwise
voluntarily effects any public filing or report regarding such transfers, with respect to transfer:
i)
as a bona fide gift or gifts, or charitable contribution(s);
ii)
to any immediate family member or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin);
iii)
to any corporation, partnership, limited liability company, or other business entity all of the equity holders of which consist of the undersigned and/or the immediate family of the undersigned;
iv)
if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (a) to another corporation, partnership, limited liability company, trust or other business entity that is an Affiliate of the undersigned, (b) in the form of a distribution to limited partners, limited liability company members or stockholders of the undersigned, or (c) in connection with a sale, merger or transfer of all or substantially all of the assets of the undersigned or any other change of control of the undersigned, not undertaken for the purpose of avoiding the restrictions imposed by this Letter Agreement;
v)
if the undersigned is a trust, to the beneficiary of such trust;
vi)
by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned;
vii)
to the Company (i) pursuant to any contractual arrangement that provides for the repurchase of the undersigned’s Securities by the Company, (ii) in connection with the termination of the undersigned’s employment or other service relationship with the Company or (iii) upon the undersigned’s death or disability;
viii)
to the Company pursuant to the vesting, settlement or exercise of restricted stock units, restricted stock, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement or exercise of such restricted stock units, restricted stock, options, warrants or rights, provided that (1) any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement; (2) any filing under the Exchange Act required to be made during the Restriction Period shall indicate in the footnotes thereto that the filing relates to circumstances described in this clause; and (3) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers;
ix)
by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement;
x)
pursuant to an order of a court or regulatory agency having jurisdiction over the undersigned; or
xi)
pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Common Stock that has been approved by the Company’s board of directors, which results in any person or group of persons becoming the beneficial owners (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of 50% of the outstanding voting securities of the Company (or the surviving entity); provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Common Stock shall remain subject to the provisions of this Letter Agreement.
In addition, notwithstanding
the foregoing, this Letter Agreement shall not restrict the delivery of shares of Common Stock to the undersigned upon (i) exercise
any options granted under any employee benefit plan of the Company; provided that any shares of Common Stock or Securities acquired in
connection with any such exercise will be subject to the restrictions set forth in this Letter Agreement, or (ii) the exercise of
warrants or any other security convertible into or exercisable for Common Stock; provided that such shares of Common Stock delivered to
the undersigned in connection with such exercise or conversion are subject to the restrictions set forth in this Letter Agreement.
Furthermore, the undersigned
may enter into any new plan established in compliance with Rule 10b5-1 of the Exchange Act (a “10b5-1 Trading Plan”),
provided that (i) no sale of shares of Common Stock are made pursuant to such plan during the Restriction Period and (ii) establishment
of a 10b5-1 Trading Plan providing for sales of Securities shall only be permitted if no public announcement or filing under the Exchange
Act is required to be made during the Restriction Period.
Furthermore, the undersigned
may sell shares of Common Stock of the Company purchased by the undersigned on the open market following the date of this Letter Agreement
if and only if (i) such sales are not required to be reported in any public report or filing with the SEC or otherwise, and (ii) the
undersigned does not otherwise voluntarily effect any public filing or report regarding such sales.
The undersigned acknowledges
that the execution, delivery and performance of this Letter Agreement is a material inducement to each Purchaser to complete the transactions
contemplated by the Purchase Agreement, and the Company shall be entitled to specific performance of the undersigned’s obligations
hereunder. The undersigned hereby represents that the undersigned has the power and authority to execute, deliver and perform this Letter
Agreement, that the undersigned has received adequate consideration therefor and that the undersigned will indirectly benefit from the
closing of the transactions contemplated by the Purchase Agreement.
This Letter Agreement may
not be amended or otherwise modified in any respect without the written consent of each of the Company and the undersigned. This Letter
Agreement shall be construed and enforced in accordance with the laws of the State of New York without regard to the principles of conflict
of laws. The undersigned hereby irrevocably submits to the exclusive jurisdiction of the United States District Court sitting in the Southern
District of New York and the courts of the State of New York located in Manhattan, for the purposes of any suit, action or proceeding
arising out of or relating to this Letter Agreement, and hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that (i) it is not personally subject to the jurisdiction of such court, (ii) the suit, action or proceeding is brought
in an inconvenient forum, or (iii) the venue of the suit, action or proceeding is improper. The undersigned hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by receiving a copy thereof sent
to the Company at the address in effect for notices to it under the Purchase Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. The undersigned hereby waives any right to a trial by jury. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law. The undersigned agrees and understands
that this Letter Agreement does not intend to create any relationship between the undersigned and any Purchaser and that no Purchaser
is entitled to cast any votes on the matters herein contemplated and that no issuance or sale of the Securities is created or intended
by virtue of this Letter Agreement.
This Letter Agreement shall
be binding on successors and assigns of the undersigned with respect to the Securities and any such successor or assign shall enter into
a similar agreement for the benefit of the Purchasers.
It is understood that this
Letter Agreement shall automatically terminate, and the undersigned shall be released from its obligations hereunder, upon the earliest
to occur, if any, of (i) prior to the execution of the Purchase Agreement, the Company advises Titan Partners Group LLC, a division
of American Capital Partners, LLC, in writing that it has determined not to proceed with the offering, (ii) the Purchase Agreement
is executed but is terminated prior to payment for and delivery of any Securities pursuant to the Purchase Agreement, or (iii) July 13,
2026 in the event that the Purchase Agreement has not been executed by such date.
This Letter 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
provisions hereof be enforced by, any other Person.
This Letter Agreement may
be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute
one and the same lock-up agreement. Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State
Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed original signatures for purposes of
this lock-up agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart of this lock-up
agreement will constitute due and sufficient delivery of such counterpart.
*** SIGNATURE PAGE FOLLOWS***
This Letter Agreement may
be executed in two or more counterparts, all of which when taken together may be considered one and the same agreement.
__________________________
Signature
__________________________
Print Name
__________________________
Position in Company, if any
Address for Notice:
Number of shares of Common Stock
_______________________________________________________________________________________________________________
Number of shares of Common Stock underlying subject
to warrants, options, debentures or other convertible securities
By signing below, the Company
agrees to enforce the restrictions on transfer set forth in this Letter Agreement.
ELICIO THERAPEUTICS, INC.
By:
Name:
Title:
Exhibit C
LIST OF
LOCKUP AGREEMENT PARTIES
Robert Connelly
Christopher Haqq, M.D., Ph.D.
Preetam Shah, MBA, Ph.D.
Peter DeMuth, Ph.D.
Julian Adams, Ph.D.
Carol Ashe
Yekaterina (Katie) Chudnovsky
Allen R. Nissenson, M.D.
Robert R. Ruffolo, Jr., Ph.D., FCPP
Jay R. Venkatesan, M.D., MBA
Karen J. Wilson
GKCC, LLC
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2619637d1_ex99-1.htm · Sequence: 5
Exhibit 99.1
Elicio
Therapeutics Announces Pricing of $15 Million Registered Direct Offering
BOSTON,
July 01, 2026 — Elicio Therapeutics, Inc. (Nasdaq: ELTX) (“Elicio” or the “Company”),
a clinical-stage biotechnology company developing next-generation immunotherapies for KRAS-driven cancers, today announced that it
has entered into a definitive securities purchase agreement led by two new fundamental institutional investors with participation from
a large existing shareholder for the purchase of an aggregate of 4,380,313 shares of its common stock pursuant to a registered direct
offering (the “Offering”). The Offering is expected to result in gross proceeds of approximately $15 million, before deducting
placement agents’ fees and other Offering expenses. The closing of the Offering is expected to occur on or about July 6, 2026,
subject to the satisfaction of customary closing conditions. Elicio intends to use the net proceeds from the Offering, together with its
existing cash, cash equivalents and marketable securities, to primarily fund the planned Phase 1 clinical development of ELI-002 7P in
metastatic PDAC and Elicio’s pipeline and platform, as well as for working capital and general corporate purposes.
Titan Partners,
a division of American Capital Partners, is acting as lead placement agent for the Offering. B. Riley Securities, Inc. is
acting as co-placement agent for the Offering.
The Offering
is being made pursuant to a shelf registration statement on Form S-3 (File No. 333-293861) initially filed with the Securities
and Exchange Commission ("SEC") on February 27, 2026, as amended on March 12, 2026, and declared effective by the
SEC on March 16, 2026 (the "Registration Statement"). The shares of common stock are being offered only by means of a prospectus,
including a prospectus supplement, forming a part of the effective registration statement. The prospectus supplement and the accompanying
prospectus relating to, and describing the terms of, the Offering will be filed with the SEC and will be available for free on the SEC’s
website at www.sec.gov. Electronic copies of the prospectus supplement and accompanying prospectus may also be obtained, when available,
by contacting Titan Partners Group LLC, a division of American Capital Partners, LLC, 4 World Trade Center, 49th Floor, New York, NY 10007,
by phone at (929) 833-1246 or by email at prospectus@titanpartnersgrp.com, or B. Riley Securities, Inc. at 1655 Fort Myer Drive,
Suite 1200, Arlington, Virginia 22209, Attention: Syndicate Prospectus Department, by telephone at 703-312-9580 or by email at prospectuses@brileysecurities.com.
This press release shall not constitute an offer to sell or a solicitation
of an offer to buy any of the securities, nor shall there be 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 ELI-002
Elicio’s lead product candidate, ELI-002, is a structurally novel
investigational AMP cancer immunotherapy that targets cancers that are driven by mutations in the KRAS-gene—a prevalent driver of
many human cancers. ELI-002 is comprised of two powerful components that are built with Elicio’s proprietary AMP technology consisting
of AMP-modified mutant KRAS peptide antigens and ELI-004, an AMP-modified CpG oligodeoxynucleotide adjuvant that is available as an off-the-shelf
subcutaneous administration.
ELI-002 7P (7-peptide formulation) was evaluated in the randomized
Phase 2 AMPLIFY-7P trial in patients with mKRAS-driven pancreatic cancer (NCT05726864). The Phase 2 AMPLIFY-7P trial included patients
with mKRAS-positive pancreatic cancer who completed standard therapy but remain at high risk of relapse. Based on topline results and
post-hoc analyses, Elicio has refined its Phase 3 development strategy to focus on patients with lower residual disease burden and extended
treatment duration. Elicio intends to initiate a Phase 1 study in metastatic PDAC designed to provide a rapid assessment of clinical activity
through a focused, confirmatory study, subject to funding. Elicio plans to use the study findings to further evaluate checkpoint inhibitor
combinations and help inform future development strategies in metastatic PDAC and the adjuvant PDAC Phase 3 trial. At the time of the
Phase 2 AMPLIFY-7P analysis, data for overall survival remained immature. The ELI-002 7P formulation is designed to provide immune response
coverage against seven of the most common KRAS mutations present in 25% of all solid tumors, thereby increasing the potential patient
population for ELI-002.
About Elicio Therapeutics
Elicio Therapeutics, Inc.
(Nasdaq: ELTX) is a clinical-stage biotechnology company advancing novel immunotherapies for the treatment of high-prevalence cancers,
including mKRAS-positive pancreatic and colorectal cancers. Elicio intends to build on recent clinical findings in the personalized cancer
immunotherapy space to develop effective, off-the-shelf immunotherapies. Elicio’s AMP technology aims to enhance the education,
activation and amplification of cancer-specific T cells relative to conventional immunotherapy strategies, with the goal of promoting
durable cancer immunosurveillance in patients. Elicio’s ELI-002 7P lead program is an off-the-shelf immunotherapy candidate targeting
the most common KRAS mutations, which drive approximately 25% of all solid tumors. Off-the-shelf immunotherapy approaches have the potential
benefits of low cost, rapid commercial scale manufacturing, and rapid availability of drug to patients, especially in neo-adjuvant
settings and for prophylaxis in high-risk patients, contrary to personalized immunotherapy approaches. ELI-002 7P was evaluated in the
randomized Phase 2 AMPLIFY-7P trial in patients with mKRAS-positive pancreatic cancer who completed standard therapy, but remain at high
risk of relapse. Based on topline results and post-hoc analyses, Elicio has refined its Phase 3 development strategy to focus on patients
with lower residual disease burden and extended treatment duration. Elicio intends to initiate a Phase 1 study in metastatic PDAC designed
to provide a rapid assessment of clinical activity through a focused, confirmatory study, subject to funding. Elicio plans to use the
study findings to further evaluate checkpoint inhibitor combinations and help inform future development strategies in metastatic PDAC
and the adjuvant PDAC Phase 3 trial. ELI-002 also has been studied in patients with mKRAS-positive colorectal cancer in Phase 1 studies.
In the future, Elicio plans to expand ELI-002 7P to other indications, including mKRAS positive lung cancer and other mKRAS positive cancers.
Elicio’s pipeline includes additional off-the-shelf therapeutic cancer immunotherapy candidates, including ELI-007 and ELI-008,
that target BRAF-driven cancers and p53 hotspot mutations, respectively.
Cautionary Note on Forward-Looking Statements
Certain statements
contained in this communication regarding matters that are not historical facts, are forward-looking statements within the meaning of
Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995, known as
the PSLRA. These include statements regarding Elicio’s intended use of proceeds from the Offering, the timing of the completion
of the Offering, and the satisfaction of customary closing conditions for the Offering. No forward-looking statement can be guaranteed,
and actual results may differ materially from those projected. Elicio undertakes no obligation to publicly update any forward-looking
statement, whether as a result of new information, future events or otherwise, except to the extent required by law. Elicio uses words
such as “aim,” “anticipate,” “assume,” “believe,” “contemplate,” “continue,”
“could,” “due,” “estimate,” “expect,” “goal,” “intend,” “may,”
“objective,” “plan,” “predict,” “potential,” “positioned,” “seek,”
“should,” “target,” “will,” “would,” and similar expressions to identify these forward-looking
statements that are intended to be covered by the safe-harbor provisions of the PSLRA. Such forward-looking statements are based on Elicio’s
expectations and involve risks and uncertainties; consequently, actual results may differ materially from those expressed or implied in
the statements due to a number of factors, including, but not limited to, Elicio’s plans to develop and commercialize its product
candidates, including ELI-002 7P; the timing of initiation of Elicio’s planned clinical trials; the timing of the availability of
data from Elicio’s clinical trials; the timing of any planned investigational new drug application or new drug application; Elicio’s
plans to research, develop and commercialize its current and future product candidates; and Elicio’s estimates regarding future
revenue, expenses, capital requirements and need for additional financing.
New factors
emerge from time to time, and it is not possible for Elicio to predict all such factors, nor can Elicio assess the impact of each such
factor on the business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from
those contained in any forward-looking statements. These risks are more fully discussed under the heading “Risk Factors”
in Elicio’s Annual Report on Form 10-K for the year ended December 31, 2025, filed with the SEC on March 12, 2026,
as amended on April 29, 2026, its Quarterly Report on Form 10-Q for the quarter ended March 31, 2026, filed with the SEC
on May 11, 2026, and any subsequent reports and other documents filed from time to time with the SEC. Forward-looking statements
included in this release are based on information available to Elicio as of the date of this release. Elicio does not undertake any obligation
to update such forward-looking statements to reflect events or circumstances after the date of this release, except to the extent required
by law.
Investor Relations Contact
Brian Ritchie
LifeSci Advisors
(212) 915-2578
britchie@lifesciadvisors.com
Media Contact
Michael Fitzhugh
LifeSci Communications
(415) 269-7757
mfitzhugh@lifescicomms.com
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- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
Local phone number for entity.
+ References
No definition available.
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
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-Section 14d
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- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
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- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
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- Definition
Trading symbol of an instrument as listed on an exchange.
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
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