Form 8-K
8-K — DarioHealth Corp.
Accession: 0001104659-26-085900
Filed: 2026-07-22
Period: 2026-07-22
CIK: 0001533998
SIC: 3841 (SURGICAL & MEDICAL INSTRUMENTS & APPARATUS)
Item: Entry into a Material Definitive Agreement
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2621105d1_8k.htm (Primary)
EX-4.1 — EXHIBIT 4.1 (tm2621105d1_ex4-1.htm)
EX-5.1 — EXHIBIT 5.1 (tm2621105d1_ex5-1.htm)
EX-10.1 — EXHIBIT 10.1 (tm2621105d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2621105d1_ex10-2.htm)
EX-99.1 — EXHIBIT 99.1 (tm2621105d1_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 Section 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date
of Earliest Event Reported): July 22, 2026 (July 22, 2026)
DARIOHEALTH CORP.
(Exact name of registrant as specified in its charter)
Delaware
001-37704
45-2973162
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
322
W. 57th St, #33B
New York, New
York 10019
(Address of Principal Executive Offices)
972- 4-770-4055
(Issuer’s telephone
number)
(Former name or former
address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation to the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading
Symbol(s)
Name of exchange on which
registered
Common Stock, par value $0.0001 per share
DRIO
The Nasdaq Capital Market LLC
Indicate by check mark whether the registrant is an emerging growth
company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth
company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01
Entry into a Material Definitive Agreement.
On July 22, 2026, DarioHealth Corp. (the “Company”) entered
into a Securities Purchase Agreement (the “Purchase Agreement”) with institutional investors, pursuant to which the Company
agreed to issue and sell to the investors in a registered direct offering priced at-the-market under Nasdaq rules (the “Offering”)
an aggregate of 2,437,060 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and pre-funded warrants to purchase an aggregate of 1,017,499 shares of Common Stock (the “Pre-Funded Warrants”).
Each Share is being sold at an offering price of $6.80 per share, and each Pre-Funded Warrant is being sold at an offering price of $6.7999,
for aggregate gross proceeds of approximately $23.5 million before deducting the Offering expenses. In addition, Dennis Matheis, a member
of the Company’s Board of Directors, entered into a Purchase Agreement to purchase 14,430 shares of Common Stock at a purchase price
of $6.93 per share. The Offering is expected to close on or about July 23, 2026, subject to satisfaction of customary closing conditions.
The Pre-Funded Warrants are
exercisable at any time after the date of issuance. A holder of Pre-Funded Warrants may not exercise the warrant if the holder, together
with any group that the holder is a member, would beneficially own more than 4.99% (or, at the election of the purchaser, 9.99%) of the
number of shares of common stock outstanding immediately after giving effect to such exercise. A holder of Pre-Funded Warrants may terminate,
increase or decrease this percentage by providing at least 61 days’ prior notice to the Company. A holder of Pre-Funded Warrant
is also subject to a limitation on exercise of the Pre-Funded Warrant if such exercise would result in such holder, together with any
group that the holder is a member, beneficially owning more 9.99% of the number of shares of common stock outstanding immediately before
giving effect to such exercise, unless shareholder approval is obtained.
The Company agreed that, subject
to certain exceptions, that for a period of thirty (30) days after the closing of the Offering (the “Restricted Period”) (i) the
Company will not 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 final prospectus
supplement relating to this offering or a registration statement on Form S-8 in connection with any employee benefit plan (including
the Company’s Employee Stock Purchase Plan). Notwithstanding the foregoing, during the Restricted Period, the Company is permitted
to make sales under its existing At-The-Market facility.
On July 22, 2026, the Company entered into a placement agent agreement
(the “Placement Agent Agreement”) with A.G.P./Alliance Global Partners, as sole placement agent (the “Placement Agent”),
pursuant to which the Company engaged the Placement Agent as the exclusive placement agent in connection with the Offering. Pursuant to
the Placement Agent Agreement, the Company will pay the Placement Agent a cash fee equal to 6.0% of the aggregate gross proceeds raised
from the sale of the securities sold in the Offering, with the exception of a 1.0% cash fee for aggregate gross proceeds of the sale of
securities raised from certain investors of which the Placement Agent and the Company mutually agreed upon. The Company also agreed to
reimburse the Placement Agent at closing for legal and other expenses incurred by them in connection with the offering in an aggregate
amount up to $60,000. The Placement Agent Agreement also contains representations, warranties, indemnification and other provisions customary
for transactions of this nature.
The Offering is being made
pursuant to a Registration Statement (No. 333-294454) on Form S-3, which was declared effective by the Commission on March 27, 2026, as
supplemented by a prospectus supplement dated July 22, 2026.
The representations, warranties
and covenants contained in the Securities Purchase Agreement were made solely for the benefit of the parties to the Securities Purchase
Agreement and may be subject to limitations agreed upon by the contracting parties. Accordingly, the Securities Purchase Agreement is
incorporated herein by reference only to provide investors with information regarding the terms of the Securities Purchase Agreement,
and not to provide investors with any other factual information regarding the Company or its business, and should be read in conjunction
with the disclosures in the Company’s periodic reports and other filings with the Securities and Exchange Commission
The foregoing description of the Securities Purchase Agreement, the
Placment Agency Agreement, and Pre-Funded Warrants do not purport to be complete and are qualified in their entirety by reference to the
full text of the form of Securities Purchase Agreement, the Placment Agency Agreement and Pre-Funded Warrants, which are filed as Exhibits
10.1, 10.2 and 4.1, respectively, to this Current Report on Form 8-K and incorporated herein by reference. A copy of the opinion of Sullivan
& Worcester LLP, relating to the validity of the securities in connection with the Offering, is filed with this Current Report on
Form 8-K as Exhibit 5.1.
Item 8.01
Other Events.
On July 22, 2026, the Company issued a press release
relating to the announcement of the Offering. A copy of the press release is filed as Exhibit 99.1 to this Current Report on Form 8-K
and is incorporated herein by reference.
Item 9.01
Financial Statements and Exhibits.
(d) Exhibits
4.1
Form of Pre-Funded Warrant
5.1
Opinion of Sullivan & Worcester LLP
10.1
Form of Securities Purchase Agreement
10.2
Placement Agency Agreement, dated July 22, 2026
23.1
Consent of Sullivan & Worcester LLP (included in Exhibit 5.1)
99.1
Press release dated July 22, 2026
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: July 22, 2026
DARIOHEALTH CORP.
By:
/s/ Chen Franco-Yehuda
Name:
Chen Franco-Yehuda
Title:
Chief Financial Officer, Treasurer and Secretary
EX-4.1 — EXHIBIT 4.1
EX-4.1
Filename: tm2621105d1_ex4-1.htm · Sequence: 2
Exhibit 4.1
PRE-FUNDED COMMON
STOCK PURCHASE WARRANT
DARIOHEALTH
CORP.
Warrant Shares:
Issue Date: _____________, 2026
THIS PRE-FUNDED COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _________________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from DARIOHEALTH CORP., a Delaware corporation (the “Company”),
up to __________ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock.
The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement
(the “Purchase Agreement”), dated July ___, 2026, among the Company and the purchaser signatory thereto.
Section
2. Exercise.
(a)
Exercise of Warrant. Exercise of the purchase
rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on
or before the Termination Date by delivery to the Company of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail
attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A (the “Notice of Exercise”). Within the
earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section
2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares
specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless
exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant Shares available hereunder and this Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice
of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of
Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in
an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number
of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one
(1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that,
by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant
Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
(b)
Exercise Price. The aggregate exercise price of
this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share, was pre-funded to the Company on or prior to the Initial
Exercise Date and, consequently, no additional consideration (other than the nominal exercise price of $0.0001 per Warrant Share) shall
be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder shall not be entitled to the return
or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any reason whatsoever. The remaining
unpaid exercise price per share of Common Stock under this Warrant shall be $0.0001, subject to adjustment hereunder (the “Exercise
Price”).
(c)
Cashless Exercise. This Warrant may also be exercised,
in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable:
(i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1)
both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant
to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(68) of
Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP
on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the
principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable Notice of Exercise
if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section
2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day
and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours”
on such Trading Day;
(B) = the Exercise
Price of this Warrant, as adjusted hereunder; and
(X) = the number
of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were
by means of a cash exercise rather than a cashless exercise.
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York
City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed
or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization
or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d)
in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith
by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
2
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the
fees and expenses of which shall be paid by the Company.
If Warrant Shares are issued
in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant
Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary
to this Section 2(c).
(d)
Mechanics of Exercise.
i.)
Delivery of Warrant Shares Upon Exercise. The
Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account
of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian
system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration
statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being
exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register
in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (A) the earlier of (i) one (1) Trading
Day and (ii) the number of days comprising the Standard Settlement Period, in each case after the delivery to the Company of the Notice
of Exercise and (B) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant
Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery
of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received
by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice
of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty,
for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice
of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue)
for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise.
The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding
and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a
number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery
of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m.
(New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Purchase Agreement,
the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date
and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate
Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
3
ii.)
Delivery of New Warrants Upon Exercise. If this
Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate,
at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii.)
Rescission Rights. If the Company fails to cause
the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the
Holder will have the right to rescind such exercise by delivering written notice to the Company at any time prior to the Company delivering
such Warrant Shares.
iv.)
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise.
In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the
Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery
Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s
brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder
the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common
Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver
to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation
was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares
for which such exercise was not honored (in which case such exercise shall be deemed rescinded) and return any amount received by the
Company in respect of the Exercise Price for those Warrant Shares or deliver to the Holder the number of shares of Common Stock that would
have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases
Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock
with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence
the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
4
v.)
No Fractional Shares or Scrip. No fractional shares
or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder
would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect
of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi.)
Charges, Taxes and Expenses. Issuance of Warrant
Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance
of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name
of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event that Warrant
Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by
the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a
sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day
processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing
similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.)
Closing of Books. The Company will not close its
stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
(e)
Holder’s Exercise Limitations.
i.)
Beneficial Ownership. For so long as the Common
Stock is an equity security as defined in Rule 13d-1(i) promulgated pursuant to the Exchange Act, the Company shall not effect any exercise
of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to
the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, such Holder (together
with such Holder’s Affiliates (which for purposes of this Section 2(e) and Section 2(f), shall include any employee of such Holder
and any person having beneficial ownership of shares of Common Stock beneficially owned by the Holder), and any Persons acting as a group
together with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially
own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares
of Common Stock beneficially owned by such Holder and its Affiliates and Attribution Parties shall include only the number of shares of
Common Stock issuable upon exercise of this Warrant, giving effect to the limitation of the foregoing sentence, but shall exclude the
number of shares of Common Stock which are issuable and beneficially owned by the Holder or its Affiliates or any of its Attribution Parties
upon (i) exercise of the remaining, nonexercised portion of this Warrant but for the limitation of the foregoing sentence and (ii) exercise
or conversion of the unexercised or unconverted portion of any other right to acquire Common Stock or Common Stock Equivalents held by
such Holder or any of its Affiliates or Attribution Parties, but for a limitation on conversion or exercise analogous to the limitation
contained herein. Any exercise of this Warrant and issuance of Common Stock in violation of the limitation contained in this Section 2(e)
shall be null and void. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be
calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged
by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange
Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith (other than as it relates to a
Holder relying on the number of shares issued and outstanding as provided by the Company pursuant to this Section). In addition, a determination
as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock,
a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s
most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company
or (iii) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request (which may be via email) of a Holder, the Company shall within one Trading Day confirm orally and in
writing to such Holder the number of shares of Common Stock then outstanding. The “Beneficial Ownership Limitation” shall
be 4.99% (or, at the written election of any Holder, 9.99%) of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. A Holder, upon at least sixty-one (61)
days advance notice to the Company, may terminate, increase or decrease the Beneficial Ownership Limitation provisions of this Section
2(e). The limitations contained in this Section 2(e) shall apply to a successor holder of this Warrant. The limitations contained in this
Section 2(e) and Section 2(f) shall terminate immediately at any time at which the Common Stock ceases to be an “equity security”
as defined in Rule 13d-1(i) promulgated under the Exchange Act (or any successor rule).
5
Section
3. Certain Adjustments.
(a)
Stock Dividends and Splits. If the Company, at
any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of
its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt,
shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares
of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common
Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of
the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares
of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the
number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant
shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant
to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive
such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination
or re classification.
(b)
Subsequent Rights Offerings. In addition to any
adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Common Stock Equivalents or rights
to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase
Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record
is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such
Purchase Rights (provided, however, that to the extent that the Holder’s right to participate in any such Purchase
Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in
such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such
extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto
would not result in the Holder exceeding the Beneficial Ownership Limitation).
(c)
Pro Rata Distributions. During such time as this
Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its
assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution
of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme
of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then,
in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated
therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard
to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date
of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of
Common Stock are to be determined for the participation in such Distribution (provided, however, that to the extent that
the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares
of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the
benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
6
(d)
Fundamental Transaction. If, at any time while
this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation
of the Company with or into another Person and the Company is not the surviving entity, (ii) the Company (or any Subsidiary), directly
or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of
its assets in one or a series of related transactions, (iii) any direct or indirect purchase offer, tender offer or exchange offer (whether
by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their
shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv)
the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization
of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for
other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock
or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off,
merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of
the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party
to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination)
(each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right
to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental
Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant (the “Fundamental
Transaction Rights”)), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result
of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the
Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any
different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property
to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives
upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations
of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant
to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and
be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction
Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power
of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the
same effect as if such Successor Entity had been named as the Company herein; provided, however, that to the extent that the Holder’s
right to participate in any such Fundamental Transaction Rights would result in the Holder and its Attribution Parties, collectively,
beneficially owning in excess of the Beneficial Ownership Limitation of the shares of Common Stock that would be issued and outstanding
following receipt of such Fundamental Transaction Rights (such excess amount of shares of Common Stock, the “Excess Fundamental
Transaction Rights”), then the Holder shall not be entitled to participate in such Fundamental Transaction Rights to the extent
of the Excess Fundamental Transaction Rights (and shall not have the right to acquire such Excess Fundamental Transaction Rights). The
Excess Fundamental Transaction Rights shall be held in abeyance for the benefit of the Holder until such time or times as (1) its right
to receive some or all of the Excess Fundamental Transaction Rights would not result in the Holder and its Attribution Parties beneficially
owning shares of Common Stock in excess of the Beneficial Ownership Limitation and (2) the Holder so certifies in writing to the Company
and specifies the number of shares of Common Stock it is able to receive without exceeding the Beneficial Ownership Limitation, at which
time or times the Holder shall be granted that portion of the Excess Fundamental Transaction Rights (and any Excess Fundamental Transaction
Rights granted, issued or sold on such initial Fundamental Transaction Rights or on any subsequent Fundamental Transaction Rights to be
held similarly in abeyance) to the same extent as if there had been no such limitation. For the avoidance of doubt, the Holder shall be
entitled to the benefits of the provisions of this Section 3(d) regardless of whether the Company has sufficient authorized shares of
Common Stock for the issuance of Warrant Shares. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions
of this Section 3(e) regardless of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant
Shares and/or whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
7
(e)
Calculations. All calculations under this Section
3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number
of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock
(excluding treasury shares, if any) issued and outstanding.
(f)
Notice to Holder.
i.)
Adjustment to Exercise Price. Whenever the Exercise
Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email
a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting
forth a brief statement of the facts requiring such adjustment.
ii.)
Notice to Allow Exercise by Holder. If (A) the
Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special
nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the
Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval
of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or
merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory
share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary
or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be
delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register
of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Company’s
subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder
shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event
triggering such notice except as may otherwise be expressly set forth herein.
8
Section
4. Transfer of Warrant.
(a)
Transferability. This Warrant and all rights hereunder
(including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the
principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form
attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making
of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants
in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment,
and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly
be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company
within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full.
The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without
having a new Warrant issued.
(b)
New Warrants. This Warrant may be divided or combined
with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names
and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section
4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers
or exchanges shall be dated the Issue Date of this Warrant and shall be identical with this Warrant except as to the number of Warrant
Shares issuable pursuant thereto.
(c)
Warrant Register. The Company shall register this
Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record
Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
(a)
No Rights as Stockholder Until Exercise; No Settlement in Cash.
This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the
exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting the rights of a Holder to
receive Warrant Shares on a “cashless exercise,” and to receive the cash payments contemplated pursuant to Sections 2(d)(i)
and 2(d)(iv), in no event will the Company be required to net cash settle an exercise of this Warrant.
(b)
Loss, Theft, Destruction or Mutilation of Warrant.
The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation
of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation
of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor
and dated as of such cancellation, in lieu of such Warrant or stock certificate.
(c)
Saturdays, Sundays, Holidays, etc. If the last
or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then,
such action may be taken or such right may be exercised on the next succeeding Trading Day.
9
(d)
Authorized Shares. The Company covenants that,
during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares
to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants
that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary
Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be
necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or
of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which
may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the extent as waived or
consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation
or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights
of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not
increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in
par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the
Company to perform its obligations under this Warrant.
Before taking any action, which would
result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall
obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies
having jurisdiction thereof.
(e)
Jurisdiction. All questions concerning the construction,
validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement.
(f)
Restrictions. The Holder acknowledges that the
Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will
have restrictions upon resale imposed by state and federal securities laws.
10
(g)
Nonwaiver and Expenses. No course of dealing or
any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice
the Holder’s rights, powers or remedies, notwithstanding the fact that the right to exercise this Warrant terminates on the Termination
Date. Without limiting any other provision of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to
comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such
amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including
those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of
its rights, powers or remedies hereunder.
(h)
Notices. Any notice, request or other document
required or permitted to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions
of the Purchase Agreement.
(i)
Limitation of Liability. No provision hereof,
in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein
of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or
as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
(j)
Remedies. The Holder, in addition to being entitled
to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this
Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that
a remedy at law would be adequate.
(k)
Successors and Assigns. Subject to applicable
securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors
and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to
be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
(l)
Amendment. This Warrant may be modified or amended
or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder of this Warrant, on the other
hand.
(m)
Severability. Wherever possible, each provision
of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant
shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(n)
Headings. The headings used in this Warrant are
for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
11
(Signature Page Follows)
12
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
DARIOHEALTH CORP.
By:
Name:
Title:
13
Exhibit A
NOTICE OF EXERCISE
TO: DARIOHEALTH CORP.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant
(only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes,
if any.
(2)
Payment shall take the form of (check applicable box):
¨
in lawful money of the United States; or
¨ if permitted the
cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following
DWAC Account Number:
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing
Entity:
Name of Authorized Signatory:
Title of Authorized Signatory:
Date:
Exhibit B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name:
_____________________________________
(Please Print)
Address:
_____________________________________
(Please Print)
Phone Number:
_____________________________________
Email Address:
_____________________________________
Dated:
_____________________________________
Holder’s Signature:
_____________________________________
Holder’s Address:
_____________________________________
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2621105d1_ex5-1.htm · Sequence: 3
Exhibit 5.1
July 22, 2026
DarioHealth Corp.
322 W. 57th St. #33B
New York, New York 10019
Re:
Sale of Common Stock and Pre-Funded Warrant Shares pursuant to Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished
to you in connection with a Registration Statement on Form S-3 (Registration No. 333-294454) (the “Registration Statement”),
the prospectus included therein and the related prospectus supplement (such prospectus, as supplemented by such prospectus supplement,
the “Prospectus Supplement”) filed or to be filed with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), by DarioHealth Corp. (the “Company”),
with respect to the sale of (a) 2,451,490 shares of the Company’s common stock (the “Shares”) and (b) 1,017,499
shares of common stock (the “Pre-Funded Warrant Shares” and together with the Shares, the “Securities”)
issuable upon the exercise of pre-funded warrants (the “Warrants”), pursuant to securities purchase agreements dated
the date hereof between the Company and the purchasers named therein (the “Purchase Agreements”).
We are acting as counsel for
Company in connection with the registration and sale of the Securities. We have examined copies of the Registration Statement and Prospectus
Supplement filed or to be filed with the Commission. We have also examined and relied upon minutes of meetings of the Board of Directors
of the Company as provided to us by the Company, the Certificate of Incorporation and By-Laws of the Company, each as restated and/or
amended to date, and such other documents as we have deemed necessary for purposes of rendering the opinions hereinafter set forth.
In our examination of the
foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents
and the legal competence of all signatories to such documents. Other than our examination of the documents indicated above, we have
made no other examination in connection with this opinion.
Our opinions set forth below
with respect to the validity of any security may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, marshaling,
moratorium or other similar laws affecting the enforcement generally of the rights and remedies of creditors and secured parties or the
obligations of debtors, and (ii) general principles of equity (whether considered in a proceeding in equity or at law), including but
not limited to principles limiting the availability of specific performance or injunctive relief, and concepts of materiality, reasonableness,
good faith and fair dealing. The opinions
rendered herein are limited to the Delaware General
Corporation Law and the federal laws of the United States.
Based upon and subject to
the foregoing, we are of the opinion that (A) the Shares, when issued as contemplated by the Prospectus Supplement and the Purchase Agreements,
including the receipt by the Company of the consideration therefor will be duly authorized, validly issued, fully paid and non-assessable
securities of the Company; (B) the Warrants have been duly and validly authorized, and upon their issuance, delivery and payment therefor
in the manner contemplated by the Prospectus Supplement and the Purchase Agreements, will be valid and binding obligations of the Company;
and (C) following (I) execution and delivery by the Company of the Warrants pursuant to the terms of the Purchase Agreements, (II) receipt
by the Company of the consideration for the Warrants as contemplated by the Prospectus Supplement and the Purchase Agreements, and (III)
exercise of the Warrants pursuant to their terms, receipt by the Company of the exercise price for the shares of common stock as specified
in the Warrants and issuance for Pre-Funded Warrant Shares, such Pre-Funded Warrant Shares 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 rendered
to you in connection with the Registration Statement, and is based upon currently existing statutes, rules, regulations and judicial decisions,
as further limited above, 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.
We hereby consent to the filing
of this opinion with the Commission as an exhibit to the Current Report on Form 8-K of the Company being filed on the date hereof and
to the reference to our firm in the Prospectus Supplement. In giving such consent, we do not hereby admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very
truly yours,
/s/
Sullivan & Worcester LLP
SULLIVAN
& WORCESTER LLP
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2621105d1_ex10-1.htm · Sequence: 4
Exhibit 10.1
SECURITIES PURCHASE
AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of July 22, 2026, between DarioHealth Corp., a Delaware corporation (the “Company”),
and the purchasers identified on the signature pages hereto (including its successors and assigns, each a “Purchaser”,
and collectively the “Purchasers”).
WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as
defined below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set
forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“ATM Facility”
means that certain sales agreement by and between the Company and the Placement Agent, dated March 30, 2026, pursuant to which the Company
may sell and issue shares of Common Stock having an aggregate offering price of up to $20.0 million from time to time in sales that are
deemed to be “at-the-market offerings” as defined in Rule 415(a)(4) under the Securities Act.
“Base Prospectus”
means the prospectus included in the Registration Statement at the time it became effective, including documents incorporated therein
by reference.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“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 at the Closing and (ii)
the Company’s obligations to deliver the Securities, in each case, at the Closing 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 $0.0001 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 Sullivan & Worcester LLP, with offices at 1251 Avenue of the Americas, New York, NY 10020.
“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, 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.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options or other equity awards to employees, officers, or directors,
or consultants of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members
of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services
rendered to the Company, (b) securities issued upon the exercise or exchange of or conversion of securities exercisable or exchangeable
for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities
have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange
price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such
securities, (c) the Securities pursuant to this Agreement and (d) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such
securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or
permit the filing of any registration statement in connection therewith during the prohibition period in Section 4.11 herein and provided
that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an
operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company
additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (e) securities issued
pursuant to sales under the ATM Facility.
“FDA”
shall have the meaning ascribed to such term in Section 3.1(rr).
“FDCA”
shall have the meaning ascribed to such term in Section 3.1(rr).
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Fundamental
Representations” means the representations and warranties made by the Company in Sections 3.1(b) (Organization and Qualification),
(c) (Authorization; Enforcement), (d) (No Conflicts), (e) (Filings, Consents and Approvals), (h) (SEC Reports; Financial Statements),
(t) (Investment Company), (v) (Listing and Maintenance Requirements) and (r) (Sarbanes-Oxley; Internal Accounting Controls).
“GAAP”
means U.S. generally accepted accounting principles.
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(z).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(o).
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“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means, collectively, the Lock-Up Agreements, dated as of the date hereof, by and among the Company and each of the
Company’s directors, executive officers and 10% stockholders of the Company, in the form of Exhibit A attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits”
shall have the meaning ascribed to such term in Section 3.1(m).
“Per Share
Purchase Price” equals $[6.80/6.93], 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; provided that the purchase price per Pre-Funded
Warrant shall be the Per Share Purchase Price minus $0.0001 (the “Per Pre-Funded Warrant Purchase Price”).
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(rr).
“Placement
Agency Agreement” means the agreement executed on the Closing Date between the Company and the Placement Agent.
“Placement
Agent” means A.G.P./Alliance Global Partners.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Pre-Funded
Warrants” means pre-funded warrants to purchase shares of Common Stock at an exercise price equal to $0.0001 per share, in the
form attached hereto as Exhibit B.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition) pending or, to the Company’s knowledge, threatened in writing against or affecting the Company, any Subsidiary
or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign).
“Prospectus”
means the Prospectus Supplement together with the Base Prospectus, 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 in connection with the Shares.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” shall mean the effective registration statement filed with the Commission on Form S-3, as amended (File No. 333-294454),
which registers the sale of the Securities, including, without limitation, the documents incorporated by reference therein.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
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“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.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Shares and Pre-Funded Warrants.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issuable 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 in respect of the Securities, the aggregate amount to be paid for Securities purchased hereunder
as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds (minus, if applicable, a Purchaser’s aggregate exercise price of the
Pre-Funded Warrants, which amounts shall be paid as and when such Pre-Funded Warrants are exercised for cash).
“Subsidiary”
means any subsidiary of the Company as set forth 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.
“Thompson
Hine” means Thompson Hine LLP, with offices at 300 Madison Avenue, 27th Floor, New York, NY 10017.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock
Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Warrants, all exhibits and schedules thereto and hereto and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place,
Woodmere, NY 11598, and any successor transfer agent of the Company.
“Warrant
Shares” means the shares of Common Stock underlying the Pre-Funded Warrants.
“Warrants”
means the Pre-Funded Warrants.
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ARTICLE II.
PURCHASE AND SALE
2.1 Closing. On the
Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, the number of Shares set forth under “Subscription Amount” on the Purchaser’s signature
page hereto at the Per Share Purchase Price and number of Pre-Funded Warrants set forth under “Subscription Amount” on the
Purchaser’s signature page hereto at the Per Pre-Funded Warrant Purchase Price; provided, however, that, to the extent
a Purchaser determines, in its sole discretion, that such Purchaser (together with 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 Common Stock, such
Purchaser may elect to purchase Pre-Funded Warrants. The “Beneficial Ownership Limitation” shall be 4.99% (or, at the
election of the Purchaser at the Closing, 9.99%) of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of the Securities on the Closing Date. Each Purchaser shall deliver or cause to be delivered to the Company, via wire
transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount, and the Company shall
deliver to each Purchaser its 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 occur at the offices
of the Placement Agent or such other location as the parties 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 “Delivery Versus Payment” settlement
with the Company or its designee. The Company shall deliver to each Purchaser its respective Shares, 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 “Delivery Versus Payment” (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).
2.2 Deliveries.
(a) On or prior
to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement
duly executed by the Company;
(ii) a legal opinion
of Company Counsel, in form reasonably acceptable to the Placement Agent and each Purchaser;
(iii) the Company’s
wire instructions on Company letterhead and executed by the Company’s Chief Executive Officer or Chief Financial Officer;
(iv) subject to the
last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on
an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system Shares equal to such Purchaser’s Subscription
Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser;
(v) Lock-up Agreements,
in form and substance reasonably acceptable to each Purchaser, executed by each officer, director and 10% stockholder of the Company;
(vi) a duly executed
and delivered Officer’s Certificate, in form and substance satisfactory to the Placement Agent and each Purchaser;
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(vii) the duly executed
and delivered Secretary’s Certificate, in form and substance satisfactory to the Placement Agent and each Purchaser; and
(viii) 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, subject to adjustment therein.
(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, which shall be made available for “Delivery Versus Payment” settlement with the Company or its designee
by wire transfer to the account specified in the wire instructions delivered pursuant to Section 2.2(a)(iii).
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 at or prior to the Closing Date shall have been performed in all material
respects; and
(iii) the delivery
by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective
obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in
all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all
respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific
date therein in which case they shall be accurate in all material respects or, to the extent representations or warranties are qualified
by materiality or Material Adverse Effect, in all respects) as of such date;
(ii) all obligations,
covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed in all material
respects;
(iii) the delivery
by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have
been no Material Adverse Effect with respect to the Company since the date hereof;
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(v) from the date
hereof to and including the Closing Date, trading in the Company’s securities shall not have been suspended by the Commission or
any 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;
(vi) the Company shall
have filed an additional listing application with the principal Trading Market with respect to the Shares; and
(vii) after giving
effect to the issuance of the Securities pursuant this Agreement, on the Closing Date, no fewer than 9,793,356 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, which SEC Reports (other than as to the Fundamental Representation,
which are not so qualified), which shall be deemed a part hereof and shall qualify any representation made herein to the extent of the
disclosures contained in the SEC Reports, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports. The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing,
and, if applicable under the laws of the jurisdiction in which they are formed, in good standing under the laws of the jurisdiction of
its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its
business as currently conducted. The Company and each of the Subsidiaries has all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its
business purpose in all material respects as described in the SEC Reports and to own or lease its properties. Neither the Company nor
any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws,
memorandum and articles of association or other organizational or charter documents. Each of the Company and the Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in
good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect. The term “Material
Adverse Effect” means an effect, change, event or occurrence that, alone or in conjunction with any other or others: (i) has
or would reasonably be expected to have a material adverse effect on: (A) the business, general affairs, management, condition (financial
or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as
a whole, or (B) the legality, validity or enforceability of any Transaction Document, or (ii) the Company’s ability to perform in
any material respect on a timely basis its obligations under any Transaction Document. No Proceeding has been instituted in any jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
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(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation
by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or
therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party
has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i)
as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(d) No Conflicts.
The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the
issuance and sale of the Securities (including the Warrant Shares underlying the Warrants) and the consummation by it of the transactions
contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws, memorandum and articles of association or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result
in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination,
amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any
agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to
which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected,
or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except
in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local, foreign or other governmental authority or other Person
in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required
pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the notice and/or application(s)
to each applicable Trading Market for the listing of the Shares and the Warrant Shares for trading thereon in the time and manner required
thereby, and (iv) such filings as are required to be made under applicable state securities laws (collectively, the “Required
Approvals”).
(f) Issuance
of the Securities; Registration. The Shares and the Warrant Shares are duly authorized and, when issued and paid for in accordance
with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company. The Warrants 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. The Company has reserved and will keep available from its duly authorized but unissued shares of Common Stock, and at all times
will have sufficient authorized but unissued shares of Common Stock to accommodate, the maximum number of shares of Common Stock issuable
pursuant to the Transaction Documents. The Company has filed the Registration Statement in conformity with the requirements of the Securities
Act, which became effective on March 27, 2026, including the Prospectus, and such amendments and supplements thereto as may have been
required to the date of this Agreement. The Registration Statement is effective under the Securities Act, and no stop order preventing
or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by
the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission.
The Company shall file the Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the Registration Statement and
any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments
thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Base Prospectus, the Prospectus Supplement and any amendments or supplements thereto, at the time the
Base Prospectus, the Prospectus Supplement or any amendment or supplement thereto was issued and at the Closing Date, conformed and will
conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company was at the time of the filing of the Registration Statement eligible to use Form S-3. The
Company is eligible to use Form S-3 under the Securities Act and meets the transaction requirements as set forth in General Instruction
I.B.1 of Form S-3.
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(g) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports as of the date thereof, which SEC Reports also include the number
of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date thereof. The Company has not
issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the
Company’s employee stock purchase plans, and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding
as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except
as set forth in the SEC Reports and as a result of the purchase and sale of the Securities, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to issue additional shares of Common Stock or Common Stock Equivalents or the capital stock of any Subsidiary. The issuance
and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any
Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary
that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any
stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding
shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws where applicable, and none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. Except for the Required Approvals, no further approval or authorization
of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders
agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(h) SEC Reports;
Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by
the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding
the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none
of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The consolidated financial statements of the Company
included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in conformity with GAAP
applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
9
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in
a Material Adverse Effect, (ii) neither the Company nor any Subsidiary has incurred any material liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except
for the issuance of the Securities contemplated by this Agreement or as set forth in the SEC Reports, no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries
or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed
by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed
at least 1 Trading Day prior to the date that this representation is made.
(j) Litigation.
Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or,
to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before
or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) ”) that would reasonably be expected to results in a Material Adverse Effect. None
of the Actions set forth in the SEC Reports (i) adversely affects or challenges the legality, validity or enforceability of any of the
Transaction Documents or the Securities or (ii) would, if there were an unfavorable decision, have or reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject
of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary
duty. There has not been, and to the knowledge of the Company, there is not pending or 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.
(k) Labor Relations.
No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which would
reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees is a member
of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company nor any of
its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters that would reasonably be expected to results in a Material Adverse Effect. The Company and its Subsidiaries are
in compliance with all applicable U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices,
terms and conditions of employment and wages and hours, except where the failure to be in compliance would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
10
(l) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case of (i), (ii) and (iii) as would not have or reasonably be expected to
result in a Material Adverse Effect.
(m) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit.
(n) Title to
Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each
case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal,
state, foreign or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance except where
the failure to so comply would not reasonably be expected to result in a Material Adverse Effect.
(o) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within one (1) year from the date of this Agreement
except for such expirations, terminations or abandonments which would not reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports,
a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of
any Person, except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company,
all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual
Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties, except where failure to do so would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having valid license
rights or clear title to the Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable to obtain any
rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
11
(p) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as the Company believes are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase
in cost.
(q) Transactions
With Affiliates and Employees. Other than as disclosed in the SEC Reports, 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.
(r) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded accountability for assets and liabilities is compared with the existing assets
and liabilities at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries
have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the
Subsidiaries and designed such disclosure controls and procedures to provide reasonable assurance that information required to be disclosed
by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness
of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently
filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most
recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in
the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have
materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its
Subsidiaries.
(s) Certain Fees.
No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction
Documents, other than fees payable to the Placement Agent (for the avoidance of doubt, the foregoing shall not include any fees and/or
commissions owed to the Transfer Agent). The Purchasers shall have no obligation with respect to any fees or with respect to any claims
made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions
contemplated by the Transaction Documents.
12
(t) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be
or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The
Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(u) Registration
Rights. Except as set forth in the SEC Reports, no Person has any right to cause the Company or any Subsidiary to effect the registration
under the Securities Act of any securities of the Company or any Subsidiary.
(v) Listing and
Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has
taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.
Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic
transfer through The Depository Trust Company or another established clearing corporation and the Company is current in payment of the
fees to The Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(w) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to a Purchaser as a result of such Purchaser and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of
the Securities and such Purchaser’s ownership of the Securities.
(x) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any Purchaser or its agents or counsel with any information that
it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the the Prospectus Supplement.
The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities
of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries,
their respective businesses and the transactions contemplated hereby, is true and correct in all material respects and does not contain
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under
which they were made and when made, not misleading. The Company acknowledges and believes, to its best knowledge, that no Purchaser makes
or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth
in Section 3.2 hereof.
(y) No Integrated
Offering. Assuming the accuracy of each Purchaser’s representations and warranties set forth in Section 3.2, neither the Company,
nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security
or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with
prior offerings by the Company for purposes of (i) the Securities Act, or (ii) any applicable stockholder approval provisions of any Trading
Market on which any of the securities of the Company are listed or designated.
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(z) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount
that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as
now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the
business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current
cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into
account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts
are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances
which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one year from the Closing Date. The SEC Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness
of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed by the Company in excess of $50,000 (other than trade accounts payable incurred
in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others
to third parties, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of
business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance
with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(aa) Tax Status.
Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect,
the Company and its Subsidiaries each (i) has made or filed, or filed an extension to file, all United States federal, state and local
income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes
for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(bb) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign
or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii)
failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the
Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(cc) Accountants.
The Company’s current independent registered public accounting firm is as set forth in the SEC Reports. To the knowledge and belief
of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express
its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December
31, 2026.
14
(dd) 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.
(ee) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(f) and 4.12 hereof), it is understood and acknowledged by the Company that: (i) the Purchasers have not been asked by
the Company to agree, nor have the Purchasers agreed, to desist from purchasing or selling, long and/or short, securities of the Company,
or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified term; (ii)
past or future open market or other transactions by the Purchasers, specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of
the Company’s publicly-traded securities; (iii) the Purchasers, and counter-parties in “derivative” transactions to
which any Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv)
the Purchasers shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative”
transaction. The Company further understands and acknowledges that (y) the Purchasers may engage in hedging activities at various times
during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the Warrant
Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of
the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The
Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.
(ff) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action
designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale
or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Securities,
or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company,
other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement of the Securities.
(gg) Office of
Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent, employee
or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”) and the Company will not, directly or indirectly, use the proceeds
of the offering of Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.
(hh) 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 any Purchaser’s request.
(ii) 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 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.
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(jj) Money Laundering.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes
and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(kk) 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.
(ll) Environmental
Laws. The handling, use, treatment, disposal, discharge, emission, contamination, release or other activity involving any kind of
hazardous, toxic or other wastes, pollutants, contaminants, petroleum products or other hazardous or toxic substances, chemicals or materials
(“Hazardous Substances”) by, due to, on behalf of, or caused by the Company or any Subsidiary (or, to the Company’s
knowledge, any other entity for whose acts or omissions the Company is or may be liable) upon any property now or previously owned, operated,
used or leased by the Company or any Subsidiary, or upon any other property, which would be a violation of or give rise to any liability
under any applicable law, rule, regulation, order, judgment, decree or permit, common law provision or other legally binding standard
relating to pollution or protection of human health and the environment (“Environmental Law”), except for violations
and liabilities which, individually or in the aggregate, would not have a Material Adverse Effect. There has been no disposal, discharge,
emission contamination or other release of any kind at, onto or from any such property or into the environment surrounding any such property
of any Hazardous Substances with respect to which the Company or any Subsidiary has knowledge, except as would not, individually or in
the aggregate, have a Material Adverse Effect. There is no pending or, to the best of the Company’s knowledge, threatened administrative,
regulatory or judicial action, claim or notice of noncompliance or violation, investigation or proceedings relating to any Environmental
Law against the Company or any Subsidiary, except as would not, individually or in the aggregate, have a Material Adverse Effect. No property
of the Company or any Subsidiary is subject to any Lien under any Environmental Law. Except as disclosed in the SEC Reports, neither the
Company nor any Subsidiary is subject to any order, decree, agreement or other individualized legal requirement related to any Environmental
Law, which, in any case (individually or in the aggregate), would have a Material Adverse Effect. The Company and each Subsidiary has
all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements.
In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations
and properties of the Company and the Subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required for clean-up, closure or remediation of properties or compliance
with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities
to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would
not, individually or in the aggregate, have a Material Adverse Effect.
(mm) Cybersecurity.
To the best of the Company’s knowledge (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.
16
(nn) Other Covered
Persons. Other than the Placement Agent, the Company is not aware of any person that has been or will be paid (directly or indirectly)
remuneration for solicitation of purchasers in connection with the sale of any Securities.
(oo) 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.
(pp) 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.
(qq) Compliance
with Data Privacy Laws. To the Company’s knowledge: (i) the Company and the Subsidiaries are, and at all times during the last
three (3) years were, in compliance with all applicable state, federal and foreign data privacy and security laws and regulations, including,
without limitation, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy
Laws”); (ii) the Company and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to
ensure compliance with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure,
handling and analysis of Personal Data (as defined below) (the “Policies”); (iii) the Company provides accurate notice
of its applicable Policies to its customers, employees, third party vendors and representatives as required by the Privacy Laws; and (iv)
applicable Policies provide accurate and sufficient notice of the Company’s then-current privacy practices relating to its subject
matter, and do not contain any material omissions of the Company’s then-current privacy practices, as required by Privacy Laws.
“Personal Data” means (i) a natural person’s name, street address, telephone number, email address, photograph,
social security number, bank information, or customer or account number; (ii) any information which would qualify as “personally
identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR;
and (iv) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any identifiable data related to an identified person’s health or sexual orientation. Except as would not, individual
or in the aggregate, have a material adverse effect: (i) none of such disclosures made or contained in any of the Policies have been inaccurate,
misleading, or deceptive in violation of any Privacy Laws; and (ii) the execution, delivery and performance of the Transaction Documents
will not result in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries, to the knowledge of the Company,
(i) has received written notice of any actual or potential liability of the Company or the Subsidiaries under, or actual or potential
violation by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in whole or in part,
any investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or
(iii) is a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory authority that imposed
any obligation or liability under any Privacy Law.
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(rr) FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal Food,
Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled,
tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”),
such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance
with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket
clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product
listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would not have
a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened, action (including any lawsuit, arbitration,
or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its Subsidiaries,
and none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication from the FDA or any
other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution
of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii)
withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales
promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by the Company
or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters or proposes
to enter into a consent decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation
of any laws, rules or regulations by the Company or any of its Subsidiaries, and which, either individually or in the aggregate, would
have a Material Adverse Effect. The properties, business and operations of the Company have been and are being conducted in all material
respects in accordance with all applicable laws, rules and regulations of the FDA. The Company has not been informed by the FDA that the
FDA will prohibit the marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed
by the Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed or proposed
to be developed by the Company.
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 in violation of the Securities
Act or any applicable state securities law (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.
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(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises any Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7),
(a)(8), (a)(9), (a)(12) or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a)
under the Securities Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access to
Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Placement
Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the Securities
nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation
as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public information
with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Securities
to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
(f) Certain Transactions
and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not 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 pricing 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. 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.
(g) No Voting Agreements.
The Purchaser is not a party to any agreement or arrangement, whether written or oral, between the Purchaser and any other Purchaser and
any of the Company’s stockholders as of the date hereof, regulating the management of the Company, the stockholders’ rights
in the Company, the transfer of shares in the Company, including any voting agreements, stockholder agreements or any other similar agreement
even if its title is different or has any other relations or agreements with any of the Company’s stockholders, directors or officers.
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(h) Brokers. Except
for the Placement Agent or as set forth in the Prospectus Supplement, no agent, broker, investment banker, person or firm acting in a
similar capacity on behalf of or under the authority of the Purchaser is or will be entitled to any broker’s or finder’s fee
or any other commission or similar fee, directly or indirectly, for which the Company or any of its Affiliates after the Closing could
have any liabilities in connection with this Agreement, any of the transactions contemplated by this Agreement, or on account of any action
taken by the Purchaser in connection with the transactions contemplated by this Agreement.
(i) Independent
Advice. Each Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the
Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment advice.
The Company acknowledges and
agrees that the representations contained in this Section 3.2 shall not modify, amend or affect each 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, except as set forth in this Agreement, with respect to locating or borrowing shares
in order to effect Short Sales or similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Legends. The Shares,
Warrants and Warrant Shares shall be issued free of all restrictive legends.
4.2 Furnishing of Information.
Until the time that 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, except in the event of a merger or acquisition transaction approved by the Board of
Directors that results in the Company not being subject to such reporting requirements.
4.3 Integration. The
Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of
any Trading Market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval
is obtained before the closing of such subsequent transaction.
4.4 Securities Laws
Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the transactions
contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission
within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents to each Purchaser
that it shall have publicly disclosed all material, non-public information delivered to each Purchaser 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 each Purchaser or any of its 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 such
Purchaser, or without the prior consent of such 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 each Purchaser with prior notice of such disclosure permitted under this clause (b) and reasonably
cooperate with such Purchaser regarding such disclosure.
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4.5 Stockholder Rights
Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is
an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under
a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 Non-Public Information.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be
disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide
any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material
non-public information, unless prior thereto such Purchaser shall have consented in writing to 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, or any of its Subsidiaries,
or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public information to a Purchaser
without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality
to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, including, without
limitation, the Placement Agent, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents,
employees or Affiliates, including, without limitation, the Placement Agent, not to trade on the basis of, such material, non-public information,
provided that the Purchasers shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction
Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously
with the delivery of such notice file such notice with the Commission pursuant to a Current Report on Form 8-K. The Company understands
and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
4.7 Use of Proceeds.
The Company shall use the net proceeds from the sale of the Securities hereunder as described in the Prospectus Supplement and shall not
use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary
course of the Company’s business and prior practices and as described in the Prospectus Supplement), (b) for the redemption of any
Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
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4.8 Indemnification of
Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify, to the fullest extent permitted by applicable
law, and hold each Purchaser and its directors, officers, shareholders, members, partners, investment managers, 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, investment managers, 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 a Purchaser Party in any capacity (including a Purchaser Party’s status as an investor), 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 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 (i) the employment thereof has been specifically authorized by the Company in
writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel reasonably acceptable
to the Purchaser or (iii) in such action there is, in the reasonable opinion of counsel to the applicable Purchaser Party (which may be
internal counsel), a material conflict on any material issue between the position of the Company and the position of such Purchaser Party,
in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company
will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations made by the Purchaser in
this Agreement. Company shall not, without the prior written consent of the Purchaser Party, effect any settlement of any pending or threatened
action or proceeding in respect of which any Purchaser Party is or could have been a party and indemnity could have been sought hereunder
by such Purchaser Party, unless such settlement includes an unconditional release of such Purchaser Party from all liability on claims
that are the subject matter of such proceeding and does not include any statements as to, or any findings of, fault, culpability or failure
to act by or on behalf of any Purchaser Party. In addition, if any Purchaser Party takes actions to collect amounts due under any Transaction
Documents or to enforce the provisions of any Transaction Documents, then the Company shall pay the costs incurred by such Purchaser Party
for such collection, enforcement or action, including, but not limited to, attorneys’ fees and disbursements. The indemnification
and other payment obligations required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course
of the investigation, defense, collection, enforcement or action, as and when bills are received or are incurred. The indemnity agreements
contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and
any liabilities the Company may be subject to pursuant to law.
4.9 Reservation of Common
Stock. As of the date hereof, the Company has reserved, free of preemptive rights, a sufficient number of shares of Common Stock for
the purpose of enabling the Company to issue Shares and Warrant Shares pursuant to this Agreement.
4.10 Listing of Shares
and Warrant Shares. The Company hereby agrees to use its best efforts to maintain the listing or quotation of the Common Stock on
the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall submit a listing of additional
shares notification form to the such Trading Market with respect to the Shares and the Warrant Shares. The Company further agrees, if
the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares
and the Warrant Shares, and will take such other action as is necessary to cause all of the Shares and the Warrant Shares to be listed
or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue
the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing
and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock
for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation,
by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic
transfer.
4.11. Subsequent Equity
Sales.
(a) From the date hereof until
thirty (30) days after the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter into any agreement to issue or
announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or (ii) file any registration statement
or amendment or supplement thereto, other than the Prospectus Supplement, filing a registration statement on Form S-8 in connection with
any employee benefit plan.
(b) Notwithstanding the foregoing,
this Section 4.11 shall not apply in respect of an Exempt Issuance.
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4.12 Certain Transactions
and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate
acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the
Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4. Each Purchaser,
severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement
are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain
the confidentiality of the existence and terms of this transaction (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 4.12 shall apply only
with respect to activities of such walled-off trading personnel.
4.13 Equal Treatment of
Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend
or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to
all Purchasers. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated
separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed
as the Purchasers acting in concert or as a group with respect to the purchase, disposition, or voting of Shares or otherwise.
4.14 Lock-Up Agreements.
The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend the term of the
lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party to a Lock-Up Agreement
breaches any provision of such Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific performance of the
terms of such Lock-Up Agreement.
4.15 Acknowledgment of
Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding shares of Common
Stock, which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations under
the Transaction Documents, including, without limitation, its obligation to issue the Shares and the Warrant Shares pursuant to the Transaction
Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the
effect of any such dilution or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance
may have on the ownership of the other stockholders of the Company.
4.16 Reserved.
4.17 Exercise Procedures.
The form of Notice of Exercise included in the Warrants sets forth the totality of the procedures required of the Purchasers in order
to exercise the Warrants. No additional legal opinion, other information, or instructions shall be required of the Purchasers to exercise
their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required, nor shall any medallion
guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to exercise the Warrants. The
Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms, conditions, and time periods
set forth in the Transaction Documents.
4.18 [Reserved].
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ARTICLE V.
MISCELLANEOUS
5.1 Termination. This
Agreement may be terminated by (i) any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the Company, (ii) by the Company by written notice
to the Purchaser, in either case if the Closing Date has not occurred on or before the fifth (5th)
Trading Day following the date hereof; provided, however, that no such termination will affect the right of any party to
sue for any breach by any other party (or parties).
5.2 Fees and Expenses.
Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without limitation, any
fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by a Purchaser),
stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3 Entire Agreement.
The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement contain the
entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and
all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed
given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email attachment
at the email addresses 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 date of transmission, if such notice or communication is delivered via email attachment at the
email addresses 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 addresses for such notices and communications shall be as set forth on the signature pages attached hereto,
and any and all such notices or other communications or deliveries must be provided to each of the addresses identified on the signature
pages attached hereto to be deemed given and effective with respect to any Purchaser party 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 (excluding any Purchaser that is an officer, director, employee or other insider of the Company
or any of its affiliates) which purchased at least fifty and one tenth percent (50.1%) in interest of the Securities assuming the full
exercise of the 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 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.
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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 “Purchaser” (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.
5.9 Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this 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 either party
shall commence an action, suit 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, suit or proceeding shall be reimbursed by the non-prevailing party
for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.
5.10 Survival. The
representations and warranties contained herein shall survive the Closing and the delivery of the Securities for the applicable statute
of limitations.
5.11 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
25
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 Warrant, the applicable
Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice concurrently (if such shares
were delivered to the applicable Purchaser) with the return to such Purchaser of the aggregate exercise price paid to the Company for
such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including,
issuance of a replacement warrant certificate evidencing such restored right).
5.14 Replacement of Securities.
If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to
be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor,
a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction.
The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including
customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies. In addition
to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and
the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not
be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Payment Set Aside.
To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces
or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded,
repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any
bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation
or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not
been made or such enforcement or setoff had not occurred.
5.17 Independent Nature
of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
the legal counsel of the Placement Agent. The legal counsel of the Placement Agent does not represent any of the Purchasers and only represents
the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience
of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that
each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and
not between the Company and the Purchasers collectively and not between and among the Purchasers.
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5.18 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 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.
5.19 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 Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.20 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)
27
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.
DARIOHEALTH CORP.
Address for Notice:
[·]
By:
Name:
[·]
Title:
[·]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASERS FOLLOWS]
28
[PURCHASERS SIGNATURE PAGES TO DRIO 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:
Subscription Amount: $_________________
Common Stock: _________________
Pre-Funded Warrants: _________________
Beneficial Ownership Limitation: Check one of the following: [ ] 4.99%
OR [ ] 9.99%
EIN Number: ____________________
29
Exhibit A
Form of Lock-Up Agreement
(See attached)
30
Exhibit B
Form of Pre-Funded Warrant
(See attached)
31
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2621105d1_ex10-2.htm · Sequence: 5
Exhibit 10.2
July 22, 2026
DarioHealth Corp.
Attn: Erez Raphael, Chief Executive Officer
322 W 57th St., #33B
New York, New York 10019
Dear Mr. Raphael:
This letter (the “Agreement”)
constitutes the agreement between A.G.P./Alliance Global Partners (the “Placement Agent”) and DarioHealth Corp., a
Delaware corporation (the “Company”), that the Placement Agent shall serve as the exclusive placement agent for the
Company, on a “best efforts” basis, in connection with the proposed registered placement (the “Placement”)
of securities of the Company, consisting of: (i) shares (the “Shares”) of the Company’s common stock, par value
$0.0001 per share (the “Common Stock) and/or (ii) pre-funded warrants to purchase shares of Common Stock (the “Warrants”,
and collectively with the Shares, the “Securities”). The Securities actually placed by the Placement Agent are referred
to herein as the “Placement Agent Securities.” The terms of the Placement shall be mutually agreed upon by the Company
and the purchasers of the Securities (the “Purchasers”), and nothing herein constitutes that the Placement Agent would
have the power or authority to bind the Company or the Purchasers, or an obligation for the Company to issue any Securities or complete
the Placement. The Company expressly acknowledges and agrees that the Placement Agent’s 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 Agent to purchase the
Securities and does not ensure the successful placement of the Securities or any portion thereof or the success of the Placement Agent
with respect to securing any other financing on behalf of the Company. The Placement Agent may retain other brokers or dealers to act
as sub-agents or selected-dealers on its behalf in connection with the Placement, provided, however, that the Company shall first approve
any such sub-agents. Certain affiliates of the Placement Agent may participate in the Placement by purchasing some of the Placement Agent
Securities. The sale of Placement Agent Securities to the Purchasers will be evidenced by a securities purchase agreement (the “Purchase
Agreement”) between the Company and such Purchasers, in a form reasonably acceptable to the Company and the Purchasers. Capitalized
terms that are not otherwise defined herein have the meanings given to such terms in the Purchase Agreement. Prior to the signing of any
Purchase Agreement, officers of the Company will be available to answer inquiries from the prospective Purchasers.
SECTION 1. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.
A. Representations of the
Company. With respect to the Placement Agent 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, are
hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, as of the date of this Agreement
and as of the date of the sale of the Placement Agent Securities (the “Closing Date”), hereby made to, and in
favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that there are no affiliations with any
Financial Industry Regulatory Authority (“FINRA”) member firm among the Company’s officers, directors or, to the knowledge
of the Company, any ten percent (10.0%) or greater securityholder of the Company, except as set forth in the Purchase Agreement.
B. Covenants of the Company.
The Company covenants and agrees to continue to retain (i) an independent public accounting firm registered with the Public Company Accounting
Oversight Board (the “PCAOB”) for a period of at least three (3) years after the Closing Date for so long as the Company
has securities registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (ii) a competent
transfer agent with respect to the Placement Agent Securities for a period of three (3) years after the Closing Date for so long as the
Company has securities registered under the Exchange Act. In addition, from the date hereof until thirty (30) days after the Closing Date,
subject to certain exceptions provided for in the Purchase Agreement, neither the Company nor any Subsidiary shall issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents, except that
such restriction shall not apply with respect to an Exempt Issuance (as defined in the Purchase Agreement).
SECTION 2. REPRESENTATIONS
OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member in good standing of FINRA, (ii) is registered
as a broker/dealer under the Exchange Act and the securities laws of each state in which an offer or sale of Placement Agent Securities
is made (unless exempt from the respective state’s broker-dealer registration requirements), (iii) is licensed as a broker/dealer
under the laws of the United States of America, applicable to the offers and sales of the Placement Agent Securities by the Placement
Agent, (iv) is and will be a corporate body validly existing under the laws of its place of incorporation, and (v) has full power and
authority to enter into and perform its obligations under this Agreement. The Placement Agent will immediately notify the Company in writing
of any change in its status with respect to subsections (i) through (v) above. The Placement Agent covenants that it will use its reasonable
best efforts to conduct the Placement hereunder in compliance with the provisions of this Agreement and the requirements of applicable
law.
SECTION 3. COMPENSATION.
A. In consideration of the
services to be provided for hereunder, the Company shall pay to the Placement Agent and/or its respective designees a cash fee of 6.00%
of the aggregate gross proceeds raised from the sale of the Placement Agent Securities (the “Cash Fee”) with the exception
of a 1.00% cash fee for aggregate gross proceeds of the sale of Placement Agent Securities raised from certain investors of which the
Placement Agent and the Company mutually agreed upon. The Cash Fee shall be paid on the Closing Date. The Company shall not be required
to pay the Placement Agent any fees or expenses except for the Cash Fee and the reimbursement of accountable legal fees and other reasonable
and documented out-of-pocket expenses incurred by the Placement Agent in connection with the transaction in the amount of up to $60,000.
The Placement Agent reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event
that a determination shall be made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of FINRA
Rules or that the terms thereof require adjustment.
B. The Company agrees to pay
all costs, fees and expenses incurred by the Company in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including, without limitation: (i) all expenses incident to the issuance, delivery and qualification
of the Placement Agent Securities (including all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer
agent of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Placement
Agent Securities; (iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other
advisors; (v) 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 Agent Securities for
offer and sale under the state securities or blue sky laws or the securities laws of any other country; and (vi) the fees and expenses
associated with including the Placement Agent Securities on the Trading Market.
SECTION 4. INDEMNIFICATION.
A. To the extent permitted
by law, with respect to the Placement Agent Securities, the Company will indemnify the Placement Agent and its affiliates, 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, including as a result of the Company’s
prior engagement of, or any other obligation to, any investment bank, placement agent, consultant or other financial advisor, 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 or directly from the Placement Agent’s fraud, willful misconduct
or gross negligence in performing the services described herein or violation of law.
B. Promptly after receipt
by the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which the Placement Agent
is entitled to indemnity hereunder, the Placement Agent will 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 or materially adversely
impacts the Company. If the Company so elects or is requested by the Placement Agent, the Company will assume the defense of such action
or proceeding and will employ counsel reasonably satisfactory to the Placement Agent and will pay the reasonable actual and documented
fees and expenses of such counsel. Notwithstanding the preceding sentence, the Placement Agent will be entitled to employ counsel separate
from counsel for the Company and from any other party in such action if counsel for the Placement Agent reasonably determines that it
would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent both the Company and
the Placement Agent. In such event, the reasonable fees and disbursements of no more than one (1) such separate counsel will be paid by
the Company, in addition to fees of local counsel. The Company will have the right to settle, compromise, or consent to the entry of judgment
in any pending or threatened the claim, action or proceeding provided that the Company will not settle any such claim, action or proceeding
without the prior written consent of the Placement Agent, which will not be unreasonably withheld, conditioned, or delayed, unless such
settlement includes an unconditional release of the Placement Agent and each other indemnitee named in such proceeding from all liabilities
arising out of the action for such claim, action or proceeding. The Company shall not be liable for any settlement of any action effected
without its written consent, which will not be unreasonably withheld, conditioned or delayed.
C. The Company agrees to notify
the Placement Agent promptly of the assertion against it or any other person of any claim or the commencement of any action or proceeding
relating to a transaction contemplated by this Agreement.
D. If for any reason the foregoing
indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless, then the Company shall contribute
to the amount paid or payable by the Placement Agent as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Placement Agent on the other,
but also the relative fault of the Company on the one hand and the Placement Agent on the other that resulted in such losses, claims,
damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect of losses,
claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred in defending
any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement Agent’s share of the liability
hereunder shall not be in excess of the amount of fees actually received, or to be received, by the Placement Agent under this Agreement.
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 5. ENGAGEMENT
TERM. The Placement Agent’s engagement hereunder will commence on the date hereof and continue through the earlier of (i) July
31, 2026, or (ii) the Closing Date. 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 Agent’s performance of due diligence it deems it necessary to terminate the
engagement, the Placement Agent 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 and expenses pursuant to Section 3 hereof and fees and expenses
with respect to the Placement Agent Securities, if sold in the Placement. Notwithstanding anything to the contrary contained herein, the
provisions concerning the Company’s obligation to pay any fees or expenses actually earned pursuant to Section 3 hereof and the
provisions concerning confidentiality, indemnification, contribution and governing law contained herein will survive any expiration or
termination of this Agreement. If this Agreement is terminated prior to the completion of the Placement, the Company shall reimburse expenses
incurred by the Placement Agent as set forth herein but in no event greater than the amounts set forth herein, on or before the Termination
Date. The Placement Agent agrees not to use any confidential information concerning the Company provided to the Placement Agent by the
Company for any purposes other than those contemplated under this Agreement.
SECTION 6. PLACEMENT
AGENT INFORMATION. The Company agrees that any information or advice rendered by the Placement Agent in connection with this engagement
is for the confidential use of the Company only in 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 Agent’s prior written consent.
SECTION 7. NO FIDUCIARY
RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by any person or entity not
a party hereto, except those entitled hereto by virtue of the indemnification provisions hereof. The Company acknowledges and agrees that
the Placement Agent is not and shall not be construed as a fiduciary of the Company and shall have no duties or liabilities to the equity
holders or the creditors of the Company or any other person by virtue of this Agreement or the retention of the Placement Agent hereunder,
all of which are hereby expressly waived.
SECTION 8. CLOSING.
The obligations of the Placement Agent, and the closing of the sale of the Placement Agent Securities hereunder are subject to the accuracy,
when made and on the Closing Date, of the representations and warranties on the part of the Company contained herein and in the Purchase
Agreement, to the performance by the Company of its obligations hereunder and in the Purchase Agreement, and to each of the following
additional terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement Agent:
A. All corporate proceedings
and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement, the Placement
Agent Securities, and all other legal matters relating to this Agreement and the transactions contemplated hereby with respect to the
Placement Agent Securities shall be reasonably satisfactory in all material respects to the Placement Agent.
B. The Placement Agent shall
have received from outside counsel to the Company such counsel’s written opinion with respect to the Placement Agent Securities
addressed to the Placement Agent and dated as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agent.
C. The Placement Agent shall
have received customary certificates of the Company’s executive officers, as to the accuracy of the representations and warranties
contained in the Purchase Agreement, and a certificate of the Company’s secretary certifying that each of the Company’s charter
documents are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions of the Company’s
Board of Directors relating to the Placement are in full force and effect and have not been modified; and (iii) as to the incumbency of
the officers of the Company.
D. The Common Stock shall
be registered under the Exchange Act in accordance with the terms of the Purchase Agreement and, as of the Closing Date, the Company shall
apply for the Shares to be listed and admitted and authorized for trading on the Nasdaq Capital Market or other applicable U.S. national
exchange and satisfactory evidence of such application shall have been provided to the Placement Agent. 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 Nasdaq Stock Market or other applicable U.S. national exchange, nor, except as set
forth in the SEC Reports, has the Company received any information suggesting that the Commission or the Nasdaq Stock Market or other
U.S. applicable national exchange is contemplating terminating such registration or listing.
E. 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 Agent Securities or materially 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 Agent Securities
or materially and adversely affect the business or operations of the Company.
F. The Company shall have
entered into a Purchase Agreement with each of the Purchasers of the Placement Agent 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.
G. 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 Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, any necessary 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.
H. The Placement Agent shall
have received an executed Lock-Up Agreement from each of the directors and Section 16 officers prior to the Closing Date.
If any of the conditions specified
in this Section 8 shall not have been fulfilled when and as required by this Agreement, all obligations of the Placement Agent hereunder
may be cancelled by the Placement Agent at, or at any time prior to, the 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 9. GOVERNING
LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements
made and to be performed entirely in such State, without regard to its conflict of laws principles. 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 10. 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 Dates of the Placement and delivery of the Placement Agent 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.
SECTION 11. 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 12. PRESS
ANNOUNCEMENTS. The Company agrees that the Placement Agent shall, on and after the Closing Date, have the right to reference the Placement
and the Placement Agent’s role in connection therewith in the Placement Agent’s marketing materials and on its website and
to place advertisements in financial and other newspapers and journals, in each case at its own expense and in compliance with all applicable
securities laws and applicable confidentiality provisions.
[The remainder of this page
has been intentionally left blank.]
Please confirm that the foregoing
correctly sets forth our agreement by signing and returning to the Placement Agent the enclosed copy of this Agreement.
Very truly yours,
A.G.P./ALLIANCE GLOBAL PARTNERS
By:
/s/ Thomas J. Higgins
Name:
Thomas J. Higgins
Title:
Managing Director
Address for notice:
590 Madison Avenue, 28th Floor
New York, New York 10022
Attn: Thomas J. Higgins
Email:
Accepted and Agreed to as of
the date first written above:
DARIOHEALTH CORP.
By:
/s/ Erez Raphael
Name:
Erez Raphael
Title:
Chief Executive Officer
Address for notice:
DarioHealth Corp.
Attn: Erez Raphael, Chief Executive Officer
322 W 57th St., #33B
New York, New York 10019
[Signature Page to Placement
Agency Agreement.]
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2621105d1_ex99-1.htm · Sequence: 6
Exhibit 99.1
Dario Announces Pricing
of a $23.5 Million Registered Direct Offering of Common Stock Priced At-The-Market Under Nasdaq Rules
The financing was led by continued support of
existing long-term institutional investors along with participation from a new global fundamental institutional investor
NEW YORK, July 22, 2026 /PRNewswire/ -- DarioHealth
Corp. (NASDAQ: DRIO) (the “Company,” “DarioHealth” or “Dario”), a leading AI-powered healthcare technology
company transforming the management of chronic conditions, today announced that it has entered into securities purchase agreements with
current long term Dario institutional investors as well as new fundamental investors for the purchase and sale of 3,454,559 shares of
common stock (or common stock equivalents in lieu thereof), at a price of $6.80 per share, in a registered direct offering priced at-the-market
under Nasdaq rules (the “Offering”). A member of the Company’s Board of Directors participated in the Offering by purchasing
14,430 shares of the Company’s common stock at a purchase price of $6.93 per share. The gross proceeds from the Offering are expected
to be approximately $23.5 million, before deducting placement agent fees and other estimated Offering expenses.
The closing of the offering
is expected to occur on or about July 23, 2026, subject to the satisfaction of customary closing conditions. The Company intends to use
the net proceeds from the offering for working capital, investments, acquisitions, and general corporate purposes.
The Offering was priced
at-the-market under Nasdaq rules. Existing long-term Dario institutional investors are participating alongside new fundamental investors,
reflecting continued support for the Company’s strategic direction and ongoing business transformation into an AI-powered platform
for the management of multiple chronic conditions.
A.G.P./Alliance Global
Partners is acting as the sole placement agent for the offering.
The securities described above are being offered
pursuant to an effective shelf registration statement on Form S-3 (File No. 333-294454) which became effective on March 27, 2026. The
Offering is being made only by means of a prospectus which is part of the effective registration statement. A prospectus supplement and
the accompanying prospectus relating to the Offering will be filed with the Securities and Exchange Commission (the “SEC”)
and will be available on the SEC's website located at http://www.sec.gov. Additionally, when available, electronic copies of the prospectus
supplement and the accompanying prospectus may be obtained, when available, from A.G.P./Alliance Global Partners, 590 Madison Avenue,
28th Floor, New York, NY 10022, or by telephone at (212) 624-2060, or by email at prospectus@allianceg.com.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy any of the securities described herein, 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 DarioHealth Corp. (NASDAQ:
DRIO)
DarioHealth Corp. (NASDAQ: DRIO)
is an AI-powered healthcare technology company helping health plans, health systems and employers improve health outcomes while lowering
the cost of care. The Company's integrated platform combines connected devices, personalized member engagement, AI-driven insights and
provider-backed clinical care to support people living with conditions including diabetes, hypertension, weight management, musculoskeletal
and behavioral health needs.
Powered by more than 13 billion
proprietary longitudinal healthcare data points collected over more than a decade, Dario's AI platform personalizes care at the individual
member level by analyzing biometric, clinical and behavioral data to deliver more timely and effective interventions. By combining engagement,
clinical intelligence and care delivery within a single platform, Dario helps customers address multiple chronic conditions through one
solution.
Cautionary Note Regarding Forward-Looking
Statements
This news release and the statements
of representatives and partners of DarioHealth Corp. related thereto contain or may contain forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995. Statements that are not statements of historical fact may be deemed to be forward-looking
statements. For example, the Company is using forward-looking statements in this press release when discussing the expected timing of
the closing of the offering and the expected use of proceeds. Without limiting the generality of the foregoing, words such as "plan,"
"project," "potential," "seek," "may," "will," "expect," "believe,"
"anticipate," "intend," "could," "estimate" or "continue" are intended to identify forward-looking
statements. Readers are cautioned that certain important factors may affect the Company's actual results and could cause such results
to differ materially from any forward-looking statements that may be made in this news release. Factors that may affect the Company's
results include, but are not limited to, regulatory approvals, product demand, market acceptance, impact of competitive products and prices,
product development, commercialization or technological difficulties, the success or failure of negotiations and trade, legal, social
and economic risks, and the risks associated with the adequacy of existing cash resources. Additional factors that could cause or contribute
to differences between the Company's actual results and forward-looking statements include, but are not limited to, those risks discussed
in the Company's filings with the U.S. Securities and Exchange Commission. Readers are cautioned that actual results (including, without
limitation, the timing for and results of the Company's commercial and regulatory plans for Dario™ as described herein) may differ
significantly from those set forth in the forward-looking statements. The Company undertakes no obligation to publicly update any forward-looking
statements, whether as a result of new information, future events or otherwise, except as required by applicable law.
DarioHealth Corporate Contacts
Michael Lipari
SVP Corporate Development
irteam@dariohealth.com
+1-201-785-6310
Rob Halpern
SVP Marketing
irteam@dariohealth.com
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