Form 8-K
8-K — ACTUATE THERAPEUTICS, INC.
Accession: 0001683168-26-008143
Filed: 2026-10-28
Period: 2026-10-26
CIK: 0001652935
SIC: 2834 (PHARMACEUTICAL PREPARATIONS)
Item: Entry into a Material Definitive Agreement
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — actuate_8k.htm (Primary)
EX-1.1 — UNDERWRITING AGREEMENT (actuate_ex0101.htm)
EX-4.1 — WARRANT AGENCY AGREEMENT DATED AS OF OCTOBER 28, 2026 (actuate_ex0401.htm)
EX-5.1 — OPINION OF GREENBERG TRAURIG, LLP (actuate_ex0501.htm)
EX-99.1 — PRESS RELEASE DATED OCTOBER 27, 2026 (actuate_ex9901.htm)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — FORM 8-K
8-K (Primary)
Filename: actuate_8k.htm · Sequence: 1
Actuate Therapeutics, Inc. Form 8-K
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0001652935
0001652935
2026-10-26
2026-10-26
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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
October 26, 2026
Actuate
Therapeutics, Inc.
(Exact
Name of Registrant as Specified in Charter)
Delaware
001-42139
47-3044785
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
1751 River Run, Suite 400
Fort Worth, Texas
76107
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s
Telephone Number, Including Area Code: (817) 887-8455
N/A
(Former
Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common Stock, par value $0.000001 per share
ACTU
The Nasdaq Stock Market LLC
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive Agreement.
Underwriting Agreement
On October 26, 2026, Actuate Therapeutics, Inc.,
a Delaware corporation (the “Company”), entered into an Underwriting Agreement (the “Underwriting Agreement”)
with Newbridge Securities Corporation, acting as sole book-running manager (the “Underwriter”), relating to the issuance and
sale of 30,985,900 shares of the Company’s common stock, par value $0.000001 per share, and warrants to purchase up to an aggregate
of 15,492,950 shares of common stock (the “Common Warrants”) (the “Offering”). The combined public offering price
for each set of two shares of common stock and one accompanying Common Warrant to purchase one share of common stock is $0.71, before
underwriting discounts and commissions. The Common Warrants have an exercise price of $0.45 per share, are exercisable immediately upon
issuance and will expire five years following the date of issuance. Under the terms of the Underwriting Agreement, the Company granted
the Underwriter an over-allotment option, exercisable for 45 days, to purchase up to 4,647,885 additional shares of common stock and additional
Common Warrants to purchase up to 2,323,942 shares of common stock from the Company at the public offering price, less underwriting discounts
and commissions.
On October 28, 2026, the Company closed the Offering.
The net proceeds to the Company from the Offering were approximately $9.96 million, after deducting underwriting discounts and commissions
and estimated Offering expenses payable by the Company.
The Offering was made pursuant to the Company’s
registration statement on Form S-1 (File No. 333-299332), which was declared effective by the Securities
and Exchange Commission on October 26, 2026 under the Securities Act of 1933, as amended (the “Securities Act”).
The Underwriting Agreement contains customary
representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company
and the Underwriter, including liabilities under the Securities Act, other obligations of the parties, and termination provisions.
The Company issued to the Underwriter or its designees
warrants to purchase up to a total of 3.5% of the shares of common stock sold in the Offering (including the shares sold through the exercise
of the over-allotment option). The warrants are exercisable at $0.44375 per share (125% of the public offering price of $0.355 per share)
commencing on the 180th day following the date of the Underwriting Agreement and will expire October 26, 2031 in compliance
with FINRA Rule 5110(g)(8)(A). The warrants have been deemed compensation by FINRA and are therefore subject to a 180-day lock-up pursuant
to FINRA Rule 5110(e).
A copy of the Underwriting Agreement is filed
as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. The foregoing description of the terms of the
Underwriting Agreement is qualified in its entirety by the Underwriting Agreement.
Warrant Agency Agreement
Additionally, in connection with the Offering,
on October 28, 2026, the Company entered into a Warrant Agency Agreement with Broadridge Corporate Issuer Solutions, LLC, as warrant agent,
pursuant to which Broadridge Corporate Issuer Solutions, LLC will act as the Company’s agent in connection with the issuance, registration,
transfer, exchange and exercise of the Common Warrants, including the Common Warrants issuable upon exercise of the Underwriter’s
over-allotment option.
A copy of the Warrant Agency Agreement is filed
as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference. The foregoing description of the terms of the
Warrant Agency Agreement is qualified in its entirety by the Warrant Agency Agreement.
2
Item 8.01 Other Events.
On October 27, 2026, the Company issued a press
release announcing that it had priced the Offering. A copy of the Company’s press release is attached as Exhibit 99.1 hereto.
In connection with the Offering, Greenberg Traurig,
LLP provided the Company with the updated legal opinion attached to this Current Report on Form 8-K as Exhibit 5.1.
This Current Report on Form 8-K shall not
constitute an offer to sell or a solicitation of an offer to buy shares of common stock or any other securities of the Company, and shall
not constitute an offer, solicitation or sale in any jurisdiction in which such an offer, solicitation or sale would be unlawful.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits
The following exhibits are filed with this report:
Exhibit
Number
Exhibit Description
1.1
Underwriting Agreement dated as of October 26, 2026 between the Company and Newbridge Securities Corporation
4.1
Warrant Agency Agreement dated as of October 28, 2026 between the Company and Broadridge Corporate Issuer Solutions, LLC, as warrant agent
5.1
Opinion of Greenberg Traurig, LLP
99.1
Press Release dated October 27, 2026 regarding the pricing of the offering
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
3
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.
Actuate Therapeutics, Inc.
Date: October 28, 2026
By:
/s/ Daniel M. Schmitt
Name: Daniel M. Schmitt
Title: President and Chief Executive Officer
4
EX-1.1 — UNDERWRITING AGREEMENT
EX-1.1
Filename: actuate_ex0101.htm · Sequence: 2
Exhibit 1.1
EXECUTION VERSION
UNDERWRITING AGREEMENT
between
ACTUATE THERAPEUTICS, INC.
and
Newbridge
Securities Corporation
ACTUATE THERAPEUTICS, INC.
UNDERWRITING AGREEMENT
New York, New York
October 26, 2026
Newbridge Securities Corporation
1200 N Federal Hwy, Suite 400
Boca Raton, Florida 33432
Ladies and Gentlemen:
The undersigned, Actuate
Therapeutics, Inc., a corporation formed under the laws of the State of Delaware (collectively with its subsidiaries and affiliates, including,
without limitation, all entities disclosed or described in the Registration Statement (as hereinafter defined) as being subsidiaries or
affiliates of Actuate Therapeutics, Inc., the “Company”), hereby confirms its agreement (this “Agreement”)
with Newbridge Securities Corporation (the “Underwriter” or “Newbridge”) on the terms and conditions
set forth herein.
1. Purchase and Sale of Securities.
1.1 Firm Securities.
1.1.1. Nature and Purchase
of Firm Securities
(i) On the basis of the
representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue
and sell to the Underwriter, an aggregate of: (A) 30,985,900 shares (each a “Firm Share” and in the aggregate the “Firm
Shares”) of the Company’s common stock, par value $0.000001 per share (the “Common Stock”), and (B)
common warrants in the form attached hereto as Exhibit A (each, a “Firm Common Warrant”, and in the aggregate,
the “Firm Common Warrants” and together with the Firm Shares, the “Firm Securities”) exercisable
to purchase up to an aggregate of 15,492,950 shares of Common Stock at an exercise price of $0.45 per share of Common Stock, subject to
adjustment as provided for therein (the “Common Warrant Shares”). The Firm Shares and the Common Warrant Shares consist
of authorized but unissued shares of Common Stock to be issued and sold by the Company.
The Firm Common Warrants
and the Option Common Warrants (as defined below) will be issued pursuant to a Warrant Agency Agreement (the “Warrant Agency
Agreement”) between the Company and Broadridge Corporate Issuer Solutions, LLC, as Warrant Agent (the “Warrant Agent”),
attached hereto as Exhibit B. The form of Common Warrant is included as an exhibit to the Warrant Agency Agreement.
(ii) The Underwriter
agrees to purchase from the Company the Firm Securities at a combined purchase price of: $0.6603 (93% of the per Firm Share public
offering price of $0.355) for two Firm Shares and one Firm Common Warrant (with $0.32085 allocated for the purchase price of each Firm
Share and $0.0093 allocated for the purchase price of one-half of one Firm Common Warrant to purchase one share of Common Stock). The
Firm Securities are to be offered to the public at the combined offering price set forth on the cover page of the Prospectus (as defined
in Section 2.1.1). In addition, see Schedule 1 attached hereto and made a part of this Agreement for the number of Firm
Securities the Underwriter agrees to purchase from the Company and the number of Option Securities (as defined below) that the Underwriter
may purchase from the Company.
1
1.1.2. Securities Payment
and Delivery.
(i) Delivery and payment
for the Firm Securities shall be made at 10:00 a.m., Eastern time, on the first (1st) Business Day following the effective date (the “Effective
Date”) of the Registration Statement (as defined in Section 2.1.1 below) (or the second (2nd) Business Day following the Effective
Date if the Registration Statement is declared effective after 4:01 p.m., Eastern time) or at such earlier time as shall be agreed upon
by the Underwriter and the Company, at the offices of Lucosky Brookman LLP, at 101 Wood Avenue South, 5th Floor, Woodbridge,
New Jersey 08830 (“Underwriter’s Counsel”), or at such other place (or remotely by facsimile or other electronic
transmission) as shall be agreed upon by the Underwriter and the Company. The hour and date of delivery and payment for the Firm Securities
is called the “Closing Date.”
(ii) Payment for the Firm
Securities shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order of the Company upon delivery
of the certificates (in form and substance satisfactory to the Underwriter) representing the Firm Securities (or through the facilities
of the Depository Trust Company (“DTC”)) for the account of the Underwriter. The Firm Securities shall be registered
in such name or names and in such authorized denominations as the Underwriter may request in writing at least one (1) full Business Day
prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Securities except upon tender of payment by
the Underwriter for all of the Firm Securities. The term “Business Day” means any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions are authorized or obligated by law to close in New York, New York.
1.2 Over-allotment
Option.
1.2.1. Option Securities.
The Company hereby grants to the Underwriter an option (the “Over-allotment Option”) to purchase from the Company (i)
up to an additional 4,647,885 shares of Common Stock, representing up to 15% of the Firm Shares sold in the Offering (the “Option
Shares”), and (ii) additional Common Warrants to purchase up to 2,323,942 shares of Common Stock, representing up to fifteen
percent (15%) of the Firm Common Warrants sold in the Offering (the “Option Common Warrants,” and together with the
Option Shares, the “Option Securities”), for the purpose of covering over-allotments of such securities, if any. The
purchase price to be paid for the Option Shares and/or Option Common Warrants will be the price set forth in Section 1.1.1 for
such securities. The Over-allotment Option may be elected with respect to, at the Underwriter’s sole discretion, Option Shares and
Option Common Warrants together, solely Option Shares, solely Option Common Warrants, or any combination thereof.
The Firm Shares and the Option
Shares are sometimes referred to herein together as the “Shares.” The Firm Common Warrants and the Option Common Warrants
are sometimes collectively referred to herein as the “Warrants.” The shares of Common Stock issuable upon exercise
of the Warrants are referred to herein as the “Warrant Shares.” The Shares, the Warrants and the Warrant Shares are
sometimes collectively referred to herein as the “Public Securities.” The offering and sale of the Public Securities
is hereinafter referred to as the “Offering.”
1.2.2. Exercise of Option.
The Over-allotment Option granted pursuant to Section 1.2.1 may be exercised by the Underwriter as to all (at any time) or
any part (from time to time) of the Option Shares and/or Option Common Warrants within 45 days after the date hereof. The Underwriter
shall not be under any obligation to purchase any Option Securities prior to the exercise of the Over-allotment Option. The Over-allotment
Option granted hereby shall be exercised by the giving of electronic notice to the Company from the Underwriter, which shall be confirmed
in writing by overnight mail or facsimile or other electronic transmission, setting forth the number of Option Securities to be purchased
and the date and time for delivery of and payment for the Option Securities (the “Option Closing Date”), which shall
not be later than five (5) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company
and the Underwriter, at the offices of Underwriter’s Counsel or at such other place (including remotely by electronic transmission)
as shall be agreed upon by the Company and the Underwriter. If such delivery and payment for the Option Securities does not occur on the
Closing Date, the applicable Option Closing Date will be as set forth in the notice. Upon exercise of the Over-allotment Option with respect
to all or any portion of the Option Securities, subject to the terms and conditions set forth herein, the Company shall become obligated
to sell to the Underwriter the number of Option Shares and/or Option Common Warrants specified in such notice.
2
1.2.3. Payment and Delivery.
Payment for the Option Securities shall be made on the Option Closing Date by wire transfer in Federal (same day) funds, payable to the
order of the Company upon delivery to the Underwriter of certificates (in form and substance satisfactory to the Underwriter) representing
the Option Securities (or through the facilities of DTC) for the account of the Underwriter. The Option Securities shall be registered
in such name or names and in such authorized denominations as the Underwriter may request in writing at least one (1) full Business Day
prior to the Option Closing Date. The Company shall not be obligated to sell or deliver the Option Securities except upon tender of payment
by the Underwriter for applicable Option Securities. The Option Closing Date may be simultaneous with, but not earlier than, the Closing
Date, and in the event that such time and date are simultaneous with the Closing Date, the term “Closing Date” shall
refer to the time and date of delivery of the Firm Securities and the Option Securities.
1.3 Underwriter’s
Warrants.
1.3.1. Purchase Warrants.
The Company hereby agrees to issue and sell to the Underwriter (and/or its designees) on the Closing Date and each Option Closing Date,
if any, a warrant (“Underwriter’s Warrant”) for the purchase of an aggregate number of shares of Common Stock
representing 3.5% of the Firm Shares (as well as any Option Shares) issued and sold in the Offering. The Underwriter’s Warrant shall
be issued pursuant to that certain underwriter’s warrant agreement, in the form attached hereto as Exhibit C (the “Underwriter’s
Warrant Agreement”). The Underwriter’s Warrant shall be exercisable, in whole or in part, commencing on the date which
is one hundred eighty (180) days after the commencement of sales of the Public Securities in this Offering, which is also the Effective
Date, and expiring on the five-year anniversary of the Effective Date at an initial exercise price per share of Common Stock of $0.44375,
which is equal to 125% of the public offering price of the Firm Shares. The Underwriter’s Warrant and the shares of Common Stock
issuable upon exercise thereof are hereinafter referred to together as the “Underwriter’s Securities.”
1.3.2. Delivery. Delivery
of the Underwriter’s Warrant shall be made on the Closing Date and the Option Closing Date, if any, and shall be issued in the name
or names and in such authorized denominations as the Underwriter may request.
2. Representations and Warranties of the Company.
The Company represents and warrants to the Underwriter as of the Applicable Time (as defined below), as of the Closing Date and as of
the Option Closing Date, if any, as follows:
2.1 Filing of Registration
Statement.
2.1.1. Pursuant to the
Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”) a registration
statement, and amendments thereto, on Form S-1 (File No. 333-299332), including any related prospectus or prospectuses, for the registration
of the Public Securities and the Underwriter’s Securities under the Securities Act of 1933, as amended (the “Securities
Act”). Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at
the time the registration statement became effective (including the Preliminary Prospectus included in the registration statement, financial
statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to
be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A (the “Rule 430A Information”) of
the Securities Act and the rules and regulations of the Commission promulgated thereunder (the “Securities Act Regulations”)),
is referred to herein as the “Registration Statement.” If the Company files any registration statement pursuant to
Rule 462(b) of the Securities Act Regulations, then after such filing, the term “Registration Statement” shall include
such registration statement filed pursuant to Rule 462(b). The Registration Statement has been declared effective by the Commission on
the date hereof.
Each prospectus used prior
to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary Prospectus.”
The Preliminary Prospectus, subject to completion, dated October 19, 2026, that was included in the Registration Statement immediately
prior to the Applicable Time is hereinafter called the “Pricing Prospectus.” The final prospectus in the form first
furnished to the Underwriter for use in the Offering, that includes the Rule 430A Information is hereinafter called the “Prospectus.”
Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus, the Pricing Disclosure Package or the Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-1 under the Securities Act as of the effective date of the Registration Statement
or the date of such Preliminary Prospectus, Pricing Prospectus or the Prospectus, as the case may be. Capitalized terms used herein but
not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
3
“Applicable Time”
means 5:30 p.m., Eastern time, on the date of this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act Regulations
(“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405
of the Securities Act Regulations) relating to the Public Securities that is (i) required to be filed with the Commission by the Company,
(ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be
filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description
of the Public Securities or of the Offering that does not reflect the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective
investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic
Road Show”)), as evidenced by its being specified in Schedule 2-B hereto.
“Issuer Limited
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Pricing Disclosure
Package” means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Pricing Prospectus
and the information included on Schedule 2-A hereto, all considered together.
2.1.2. Pursuant to the
Exchange Act. The Company has filed with the Commission a Form 8-A, as amended (File Number 001-42139) (the “Form 8-A”),
providing for the registration pursuant to Section 12(b) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), of the shares of Common Stock. The Form 8-A registering the shares of Common Stock under the Exchange Act has been declared
effective by the Commission. The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the shares of Common Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating
terminating such registration.
2.2 Stock Exchange Listing.
The shares of Common Stock have been approved for listing on the Nasdaq Global Market (the “Exchange”), and the Company
has taken no action designed to, or likely to have the effect of, delisting the shares of Common Stock from the Exchange, nor has the
Company received any notification that the Exchange is contemplating terminating such listing except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
2.3 No Stop Orders, etc.
Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any order preventing or suspending
the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or, to the Company’s knowledge,
threatened to institute, any proceedings with respect to such an order. The Company has complied with each request (if any) from the Commission
for additional information.
2.4 Disclosures
in Registration Statement.
2.4.1. Compliance with
Securities Act and 10b-5 Representation.
(i) Each of the Registration
Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements
of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment or supplement thereto, and the Prospectus, at the time each was filed with the
Commission, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary
Prospectus delivered to the Underwriter for use in connection with this Offering and the Prospectus was or will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
4
(ii) Neither the Registration
Statement nor any amendment thereto, at its effective time, as of the Applicable Time, at the Closing Date or at any Option Closing Date
(if any), contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading.
(iii) The Pricing Disclosure
Package, as of the Applicable Time, at the Closing Date or at any Option Closing Date (if any), did not, does not and will not include
an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and each Issuer Limited Use Free Writing Prospectus does not conflict
with the information contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, and
each such Issuer Limited Use Free Writing Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the Applicable
Time, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty
shall not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the
Company with respect to the Underwriter by the Underwriter expressly for use in the Registration Statement, the Pricing Prospectus or
the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or
on behalf of the Underwriter consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus:
the name of the Underwriter, the information contained under the subheadings titled “Discounts and Commissions”, “Stabilization”,
“Discretionary Accounts,” “Passive Market Making”, “Offering Restrictions Outside the United States”,
and “Electronic Distribution” (the “Underwriter Information”). Neither the Prospectus nor any amendment
or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant
to Rule 424(b), at the Closing Date or at any Option Closing Date, included, includes or will include an untrue statement of a material
fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to the Underwriter
Information.
2.4.2. Disclosure
of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
conform in all material respects to the descriptions thereof contained therein and there are no agreements or other documents required
by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound
or affected and (i) that is referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (ii) is material
to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material
respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its
terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities
laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor may be brought. None of such agreements or instruments
has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in default thereunder
and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute
a default thereunder. To the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments
will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental
Entity”), including, without limitation, those relating to environmental laws and regulations.
2.4.3. Regulations.
The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects of federal, state,
local and all foreign regulation on the Offering and the Company’s business as currently contemplated are correct in all material
respects and no other such regulations are required to be disclosed in the Registration Statement, the Pricing Disclosure Package and
the Prospectus which are not so disclosed.
2.4.4. No Other Distribution
of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection
with the Offering other than any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus and other materials, if any,
permitted under the Securities Act and consistent with Section 3.2 below.
5
2.5 Changes After Dates
in Registration Statement.
2.5.1. No Material Adverse
Change. Since the respective dates as of which information is given in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the financial position
or results of operations of the Company or its Subsidiaries taken as a whole nor any change or development that, singularly or in the
aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition (financial
or otherwise), results of operations, business or assets of the Company (a “Material Adverse Change”); (ii) there have
been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement; and (iii) no officer
or director of the Company has resigned from any position with the Company.
2.5.2. Recent Securities
Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, the Company has not: (i) issued any securities or incurred any liability
or obligation, direct or contingent, for borrowed money, except in the ordinary course of business; or (ii) declared or paid any dividend
or made any other distribution on or in respect to its capital stock.
2.6 Independent Accountants.
To the knowledge of the Company, Crowe LLP (the “Auditor”), whose report is filed with the Commission as part of the
Registration Statement, the Pricing Disclosure Package and the Prospectus, is an independent registered public accounting firm as required
by the Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight Board. The Auditor has not, during
the periods covered by the financial statements included in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.7 Financial Statements,
etc. The financial statements, including the notes thereto and supporting schedules included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, fairly present the financial position and the results of operations of the Company at the dates
and for the periods to which they apply; and such financial statements have been prepared in conformity with U.S. generally accepted accounting
principles (“GAAP”), consistently applied throughout the periods involved (provided that unaudited interim financial
statements are subject to year-end audit adjustments that are not expected to be material in the aggregate and do not contain all footnotes
required by GAAP); and the supporting schedules included in the Registration Statement present fairly the information required to be stated
therein. Except as included therein, no historical or pro forma financial statements are required to be included in the Registration Statement,
the Pricing Disclosure Package or the Prospectus under the Securities Act or the Securities Act Regulations. The pro forma and pro forma
as adjusted financial information and the related notes, if any, included in the Registration Statement, the Pricing Disclosure Package
and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements of the Securities Act and the
Securities Act Regulations and present fairly the information shown therein, and the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures
contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item
10 of Regulation S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Pricing Disclosure Package
and the Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations),
and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect
on the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital
resources, or significant components of revenues or expenses. Except as disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (a) neither the Company nor any of its direct and indirect subsidiaries, including each entity disclosed or
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus as being a subsidiary of the Company (each,
a “Subsidiary” and, collectively, the “Subsidiaries”), has incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company
has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock, (c) there has not been
any change in the capital stock of the Company or any of its Subsidiaries, or, other than in the ordinary course of business, any grants
under any stock compensation plan, and (d) there has not been any Material Adverse Change in the Company’s long-term or short-term
debt. The Company represents that it has no direct or indirect subsidiaries other than those listed in Exhibit 21.1 to the Registration
Statement.
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2.8 Authorized Capital;
Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions stated in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, the Company will have on the Closing Date the adjusted stock capitalization
set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Pricing Disclosure Package and the Prospectus,
on the Effective Date, as of the Applicable Time and on the Closing Date and any Option Closing Date, there will be no stock options,
warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock of the Company or any security
convertible or exercisable into shares of Common Stock of the Company, or any contracts or commitments to issue or sell shares of Common
Stock or any such options, warrants, rights or convertible securities.
2.9 Valid Issuance of
Securities, etc.
2.9.1. Outstanding Securities.
All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement have been duly authorized
and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission, rights of first refusal or
rights of participation or similar rights and are not subject to personal liability by reason of being such holders; and none of such
securities were issued in violation of the preemptive rights, rights of first refusal or rights of participation or similar rights of
any holders of any security of the Company or similar contractual rights granted by the Company. The authorized shares of Common Stock
conform in all material respects to all statements relating thereto contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus. The offers and sales of the outstanding shares of Common Stock were at all relevant times either registered under
the Securities Act and the applicable state securities or “blue sky” laws or, based in part on the representations and warranties
of the purchasers of such shares of Common Stock, exempt from such registration requirements. The description of the Company’s stock
option, stock bonus and other related plans or arrangements, and options and/or other rights granted thereunder, as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, accurately and fairly present, in all material respects, the information
required to be shown with respect to such plans, arrangements, options and rights.
2.9.2. Securities Sold
Pursuant to this Agreement. The Firm Shares and the Option Shares have been duly authorized for issuance and sale and, when issued
and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability
by reason of being such holders; the Public Securities and the Underwriter’s Securities are not and will not be subject to the preemptive
rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required
to be taken for the authorization, issuance and sale of the Public Securities and the Underwriter’s Securities has been duly and
validly taken. The Public Securities and the Underwriter’s Securities conform in all material respects to all statements with respect
thereto contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus. All corporate action required to be
taken for the authorization, issuance and sale of the Warrants and the Underwriter’s Warrant has been duly and validly taken; the
shares of Common Stock issuable upon exercise of the Warrants and the Underwriter’s Warrant have been duly authorized and reserved
for issuance by all necessary corporate action on the part of the Company and when paid for and issued upon exercise in accordance with
the Warrants and the Underwriter’s Warrant, respectively, such shares of Common Stock will be validly issued, fully paid and non-assessable;
the holders thereof will not be subject to personal liability by reason of being such holders; and such shares of Common Stock will not
be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company.
2.10 Registration Rights
of Third Parties. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no holders
of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the Company have the
right to require the Company to register any such securities of the Company under the Securities Act or to include any such securities
in the Registration Statement or any other registration statement to be filed by the Company.
2.11 Validity and Binding
Effect of Agreements. The execution, delivery and performance of this Agreement, the Warrants, the Underwriter’s Warrant and
the Warrant Agency Agreement between the Company and the Company’s warrant agent (the “Warrant Agency Agreement”)
have been duly and validly authorized by the Company, and, when executed and delivered, will constitute valid and binding agreements of
the Company, enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability
of any indemnification or contribution provision may be limited under the federal or state securities laws; and (iii) that the remedy
of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
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2.12 No Conflicts, etc.
The execution, delivery and performance by the Company of this Agreement, the Warrant Agency Agreement, the Warrants and the Underwriter’s
Warrant and all ancillary documents, the consummation by the Company of the transactions herein and therein contemplated and the compliance
by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both:
(i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default under, or result
in the creation, modification, termination or imposition of any lien, charge, mortgage, pledge, security interest, claim, preferential
arrangement, encumbrance or restriction of any kind whatsoever upon any property or assets of the Company pursuant to the terms of any
agreement or instrument, license or permit, to which the Company is a party, or to which any of its assets are bound; (ii) result in any
violation of the provisions of the Company’s Sixth Amended and Restated Certificate of Incorporation (as the same may be amended
or restated from time to time, the “Charter”) or the Amended and Restated Bylaws of the Company (the “Bylaws”);
or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof
(including, without limitation, those promulgated by the Food and Drug Administration of the U.S. Department of Health and Human Services
(the “FDA”), the European Medicines Agency (the “EMA”)
or by any foreign, federal, state or local regulatory authority performing functions similar to those performed by the FDA).
2.13 No Defaults; Violations.
To the knowledge of the Company, no material default exists in the due performance and observance of any term, covenant or condition of
any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any
term or provision of its Charter or Bylaws, or in violation of any franchise, license, permit, applicable law, rule, regulation, judgment
or decree of any Governmental Entity.
2.14 Corporate Power;
Licenses; Consents.
2.14.1. Conduct of Business.
Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has all requisite corporate
power and authority, and has all necessary consents, authorizations, approvals, orders, licenses, certificates, qualifications, registrations
and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business purpose
as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.14.2. Transactions Contemplated
Herein. The Company has all corporate power and authority to enter into this Agreement, the Warrant Agency Agreement, the Warrants
and the Underwriter’s Warrant and to carry out the provisions and conditions hereof, and all Authorizations (as defined below) required
in connection therewith have been obtained. No authorization of, and no filing with, any Governmental Entity is required for the valid
issuance, sale and delivery of the Public Securities and the Underwriter’s Securities and the consummation of the transactions and
agreements contemplated by this Agreement, the Warrant Agency Agreement and the Warrants and as contemplated by the Registration Statement,
the Pricing Disclosure Package and the Prospectus, except with respect to applicable federal and state securities laws and the rules and
regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.15 D&O Questionnaires.
To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”) completed
by each of the Company’s directors and officers immediately prior to the Offering (the “Insiders”) as supplemented
by all information concerning the Company’s directors, officers and principal stockholders as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, as well as in the Lock-Up Agreement (as defined in Section 2.25 below), provided to
the Underwriter, is true and correct in all material respects and the Company has not become aware of any information which would cause
the information disclosed in the Questionnaires to become materially inaccurate and incorrect.
2.16 Litigation; Governmental
Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending
or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge, any executive
officer or director which has not been disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus or in
connection with the Company’s listing application for the listing of the Public Securities on the Exchange.
8
2.17 Good Standing.
The Company has been duly organized and is validly existing as a corporation, in good standing and is duly qualified to do business under
the laws of the State of Delaware as of the date hereof; and is duly qualified to do business and is in good standing in each other jurisdiction
in which its ownership or lease of property or the conduct of business requires such qualification except where failure to be qualified
or in good standing would not reasonably be expected to result in a Material Adverse Change.
2.18 Insurance. The
Company carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts and covering such risks which the
Company reasonably believes are adequate, including, but not limited to, directors and officers insurance coverage and all such insurance
is in full force and effect. The Company has no reason to believe that it will not be able (i) to renew its existing insurance coverage
as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to
conduct its business.
2.19 Transactions Affecting
Disclosure to FINRA.
2.19.1. Finder’s
Fees. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no claims, payments,
arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or,
to the Company’s knowledge, any Insider with respect to the sale of the Public Securities hereunder or any other arrangements, agreements
or understandings of the Company or, to the Company’s knowledge, any of its stockholders that may affect the Underwriter’s
compensation, as determined by FINRA.
2.19.2. Payments Within
Twelve (12) Months. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and except
for the Advance as described in Section 3.9.1 of this Agreement, the Company has not made any direct or indirect payments (in cash, securities
or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital
for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any
person or entity that has any direct or indirect affiliation or association with any FINRA member, within the twelve (12) months prior
to the Effective Date, other than the payment to the Underwriter as provided hereunder in connection with the Offering.
2.19.3. Use of Proceeds.
None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates, except as specifically
authorized herein.
2.19.4. FINRA Affiliation.
To the knowledge of the Company, there is no (i) officer or director of the Company, (ii) beneficial owner of 10% or more of any class
of the Company’s securities or (iii) beneficial owner of the Company’s unregistered equity securities which were acquired
during the 180-day period immediately preceding the filing of the Registration Statement that is an affiliate or associated person of
a FINRA member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
2.19.5. Information.
All information provided by the Company in its, and, to the Company’s knowledge, all information provided by the Company’s
officers and directors in their, FINRA questionnaire to Underwriter’s Counsel specifically for use by Underwriter’s Counsel
in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all material
respects.
2.20 Foreign Corrupt Practices
Act. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee or affiliate
of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries, has, directly or indirectly,
(i) given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course
of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency
or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other
person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual
or proposed transaction) that (a) might subject the Company to any damage or penalty in any civil, criminal or governmental litigation
or proceeding, (b) if not given in the past, might have had a Material Adverse Change, (c) if not continued in the future, might adversely
affect the assets, business, operations or prospects of the Company, or (d) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended (the “FCPA”) or any applicable non-U.S. anti-bribery statute or regulation;
(ii) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (iii) received notice of any investigation,
proceeding or inquiry by any Governmental Entity regarding any of the matters in clauses (i) or (ii) above; and the Company and, to the
knowledge of the Company, the Company’s affiliates have conducted their respective businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith. The Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient to cause
the Company to comply in all material respects with the FCPA.
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2.21 Compliance with OFAC.
None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee or affiliate of
the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries, is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”),
and the Company will not, directly or indirectly, use the proceeds of the Offering 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.
2.22 Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in
any of the Registration Statement, Pricing Disclosure Package or Prospectus has been made or reaffirmed without a reasonable basis or
has been disclosed other than in good faith.
2.23 Money Laundering
Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit
or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
2.24 Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Underwriter or to Underwriter’s
Counsel shall be deemed a representation and warranty by the Company to the Underwriter as to the matters covered thereby.
2.25 Lock-Up Agreements.
Schedule 3 hereto contains a complete and accurate list of the Company’s officers and directors and certain owners of 5%
or more of the Company’s outstanding shares of Common Stock (or securities convertible or exercisable into shares of Common Stock)
(collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Underwriter
an executed Lock-Up Agreement, in the form attached hereto as Exhibit D (the “Lock-Up Agreement”), prior to
the execution of this Agreement.
2.26 Subsidiaries.
All direct and indirect Subsidiaries of the Company are duly organized and in good standing under the laws of the place of organization
or incorporation; and each Subsidiary is in good standing in each jurisdiction in which its ownership or lease of property or the conduct
of business requires such qualification except where failure to be qualified would not reasonably be expected to result in a Material
Adverse Change. The Company’s ownership and control of each Subsidiary is as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus. As of the date of this Agreement, the Company has a 100%-owned Irish subsidiary, Actuate Therapeutics
Limited, that is currently dormant.
2.27 Related Party Transactions.
There are no business relationships or related party transactions involving the Company or any other person required to be described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus that have not been described as required.
2.28 No Relationships
with Customers and Suppliers. No relationship, direct or indirect, exists between or among the Company on the one hand, and to the
Company’s knowledge, the directors, officers, 5% or greater stockholders, customers or suppliers of the Company or any of the Company’s
affiliates on the other hand, which is required to be described in the Pricing Disclosure Package and the Prospectus or a document incorporated
by reference therein and which is not so described.
2.29 No Unconsolidated
Entities. There are no transactions, arrangements or other relationships between and/or among the Company, any of its affiliates (as
such term is defined in Rule 405 of the Securities Act) and any unconsolidated entity, including, but not limited to, any structured finance,
special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s liquidity or the
availability of or requirements for its capital resources required to be described in the Pricing Disclosure Package and the Prospectus
or a document incorporated by reference therein which have not been described as required.
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2.30 Board of Directors.
The Board of Directors of the Company is comprised of the persons set forth in the Registration Statement, the Pricing Disclosure Package
and the Prospectus. The qualifications of the persons serving as board members and the overall composition of the board comply with the
Exchange Act and the rules and regulations of the Commission promulgated thereunder (the “Exchange Act Regulations”),
the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder (the “Sarbanes-Oxley Act”) applicable to the Company
and the listing rules of the Exchange. Subject to any grace or extension period authorized by the Exchange, based on the Questionnaires,
at least one member of the Audit Committee of the Board of Directors of the Company will qualify as an “audit committee financial
expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange. In addition, at least a majority of
the persons serving on the Board of Directors qualify as “independent,” as defined under the listing rules of the Exchange.
2.31 Sarbanes-Oxley Compliance.
2.31.1. Disclosure Controls.
The Company has developed and currently maintains disclosure controls and procedures that will comply with Rule 13a-15 or 15d-15 under
the Exchange Act.
2.31.2. Compliance.
The Company is, or at the Applicable Time and on the Closing Date will be, in material compliance with the provisions of the Sarbanes-Oxley
Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure the Company’s future
compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions of the Sarbanes-Oxley
Act.
2.32 Accounting Controls.
Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its Subsidiaries
maintain systems of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d-15 under the Exchange
Act Regulations) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective
principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including,
but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, the Company is not aware of any material weaknesses in its internal controls. The Company’s
auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material
weaknesses in the design or operation of internal controls over financial reporting which are known to the Company’s management
and that have adversely affected or are reasonably likely to adversely affect the Company’s ability to record, process, summarize
and report financial information; and (ii) any fraud known to the Company’s management, whether or not material, that involves management
or other employees who have a significant role in the Company’s internal controls over financial reporting.
2.33 No Investment Company
Status. The Company is not and, after giving effect to the Offering and the application of the proceeds thereof as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be, required to register as an “investment company,”
as defined in the Investment Company Act of 1940, as amended.
2.34 No Labor Disputes.
No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is imminent.
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2.35 Intellectual Property
Rights. The Company and each of its Subsidiaries owns or possesses or has valid rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets and similar
rights (“Intellectual Property Rights”) necessary for the conduct of the business of the Company and its Subsidiaries
as currently carried on and as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus. To the knowledge
of the Company, no action or use by the Company or any of its Subsidiaries necessary for the conduct of its business as currently carried
on and as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus will involve or give rise to any
infringement of, or license or similar fees for, any Intellectual Property Rights of others. Neither the Company nor any of its Subsidiaries
has received any notice alleging any such infringement, fee or conflict with asserted Intellectual Property Rights of others. To the knowledge
of the Company, there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property Rights owned
by the Company; there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging
the rights of the Company in or to any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; the Intellectual Property Rights owned by the Company and, to the knowledge of the Company, the Intellectual
Property Rights licensed to the Company have not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole
or in part, and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others
that the Company infringes, misappropriates or otherwise violates any Intellectual Property Rights or other proprietary rights of others,
the Company has not received any written notice of such claim and the Company is unaware of any other facts which would form a reasonable
basis for any such claim; and to the Company’s knowledge, no employee of the Company is in or has ever been in violation in any
material respect of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis
of such violation relates to such employee’s employment with the Company, or actions undertaken by the employee while employed with
the Company and could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change. To the Company’s
knowledge, all material technical information developed by and belonging to the Company which has not been patented has been kept confidential.
The Company is not a party to or bound by any options, licenses or agreements with respect to the Intellectual Property Rights of any
other person or entity that are required to be set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus
and are not described therein. The Registration Statement, the Pricing Disclosure Package and the Prospectus contain in all material respects
the same description of the matters set forth in the preceding sentence. None of the technology employed by the Company has been obtained
or is being used by the Company in violation of any contractual obligation binding on the Company or, to the Company’s knowledge,
any of its officers, directors or employees, or otherwise in violation of the rights of any persons.
To the Company’s knowledge,
all licenses for the use of the Intellectual Property described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus are in full force and effect in all material respects and are enforceable by the Company and, to the Company’s knowledge,
the other parties thereto, in accordance with their terms, except (x) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought. None of such agreements or instruments has been assigned by the Company, and the Company, has no knowledge that
any other party is in default thereunder and no event has occurred that, with the lapse of time or the giving of notice, or both, would
constitute a default thereunder.
2.36 Taxes. Each of
the Company and its Subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to
the date hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its Subsidiaries has paid all
taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the
Company or such respective Subsidiary. The provisions for taxes payable, if any, shown on the financial statements filed with or as part
of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including
the dates of such consolidated financial statements. Except as disclosed in writing to the Underwriter, (i) no issues have been raised
(and are currently pending) by any taxing authority in connection with any of the returns or taxes asserted as due from the Company or
its Subsidiaries, and (ii) no waivers of statutes of limitation with respect to the returns or collection of taxes have been given by
or requested from the Company or its Subsidiaries. The term “taxes” means all federal, state, local, foreign and other
net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use,
withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other
taxes, fees, assessments or charges of any kind whatever, together with any interest and any penalties, additions to tax or additional
amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements and other documents
required to be filed in respect to taxes.
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2.37 ERISA Compliance.
The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974,
as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established or maintained
by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA.
“ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in Sections
414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the
“Code”) of which the Company is a member. No “reportable event” (as defined under ERISA) has occurred
or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company or
any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities”
(as defined under ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii)
Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company or any
of its ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the knowledge of the
Company, nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2.38 Compliance with Laws.
The Company: (A) is and at all times has been in material compliance with all statutes, rules, regulations, ordinances, judgments, orders
and decrees of all Governmental Entities applicable to the Company’s business (“Applicable Laws”); (B) has not
received any warning letter, untitled letter or other correspondence or notice from any other Governmental Entity alleging or asserting
noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, consents, permits and supplements
or amendments thereto required by any such Applicable Laws (“Authorizations”); (C) possesses all material Authorizations
and such Authorizations are valid and in full force and effect and are not in material violation of any term of any such Authorizations;
(D) has not received notice of any claim, action, suit, litigation, proceeding, hearing, enforcement, investigation, inquiry, arbitration
or other action from any Governmental Entity or third party alleging that any product, operation or activity is in violation of any Applicable
Laws or Authorizations and has no knowledge that any such Governmental Entity or third party is considering any such claim, action, suit,
litigation, proceeding, hearing, enforcement, investigation, inquiry, arbitration or other action; (E) has not received notice that any
Governmental Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge
that any such Governmental Entity is considering such action; (F) has filed, obtained, maintained or submitted all material reports, documents,
forms, filings, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or
Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission); and (G) has not, either voluntarily
or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement,
safety alert, post-sale warning, “dear doctor” letter, or other notice or action relating to the alleged lack of safety or
efficacy of any product or any alleged product defect or violation and, to the Company’s knowledge, no third party has initiated,
conducted or intends to initiate any such notice or action.
2.39 Clinical Data and
Regulatory Compliance. The preclinical tests and clinical trials, and other studies conducted by or on behalf of the Company (collectively,
“studies”) that are described in, or the results of which are referred to in, the Registration Statement, the Pricing
Disclosure Package or the Prospectus were and, if still pending, are being conducted in all material respects in accordance with applicable
laws, rules, regulations and policies of the FDA and the EMA or any committee thereof or of any other U.S. or foreign government or drug
regulatory agency, or health care facility Institutional Review Board; each description of the results of such studies is accurate and
complete in all material respects and fairly presents the data derived from such studies, and the Company and its Subsidiaries have no
knowledge of any other studies the results of which are materially inconsistent with, or otherwise call into question, the results described
or referred to in the Registration Statement, the Pricing Disclosure Package or the Prospectus; for such studies that have been or are
being conducted, the Company and its Subsidiaries have made all such filings and obtained all such approvals as may be required by foreign
government or drug or medical device regulatory agencies, or foreign health care facility Institutional Review Boards; and no investigational
new drug application filed by or on behalf of the Company or any of its Subsidiaries with the FDA or EMA has been terminated or suspended
by the FDA or EMA, and neither the FDA, the EMA nor any applicable foreign regulatory agency has commenced, or, to the knowledge of the
Company, threatened to initiate, any action to place a clinical hold order on, or otherwise terminate, delay or suspend, any proposed
or ongoing studies conducted or proposed to be conducted by or on behalf of the Company or any of its Subsidiaries.
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2.40 Regulatory Compliance.
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company is, and at all times
since inception has been, in compliance with all applicable Health Care Laws, and has not engaged in activities which are, as applicable,
cause for false claims liability, civil penalties, or mandatory or permissive exclusion from Medicare, Medicaid, or any other state health
care program or federal health care program. The Company is not a party to any corporate integrity agreements, monitoring agreements,
consent decrees, settlement orders, or similar agreements with or imposed by any governmental authority regarding any alleged non-compliance
with applicable Health Care Laws. In addition, none of the Company or, to the Company’s knowledge, any of its directors, officers,
employees or agents is or has been debarred, suspended or excluded, or has been convicted of any crime or engaged in any conduct that
would result in a debarment, suspension or exclusion from any federal or state government health care program or human clinical research,
or is subject to any inquiry, investigation, proceeding, or other similar action by a governmental authority that could reasonably be
expected to result in any such debarment, suspension, or exclusion. For purposes of this Agreement, “Health Care Laws”
means: the federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)),
the civil False Claims Act (31 U.S.C. §§ 3729-3733), the federal False Statements Law (42 U.S.C. § 1320a-7b(a)), the Civil
Monetary Penalties Law (42 U.S.C. §1320a-7a), all criminal laws relating to health care fraud and abuse, including, but not limited
to, 18 U.S.C. §§ 286 and 287, the exclusions law (42 U.S.C. § 1320a-7), the statutes, regulations and directives of Medicare
(Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act) and all other government funded or sponsored
healthcare programs, the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), as amended by the
Health Information Technology for Economic and Clinical Health Act of 2009 (42 U.S.C. §17921 et seq.), the regulations promulgated
pursuant to such laws, and all other comparable local, state, federal, national, and foreign laws relating to the regulation of the Company.
2.41 Licenses and Permits.
(i) The Company and its Subsidiaries possess such valid and current Authorizations issued by, and have made all declarations, amendments,
supplements and filings with, the appropriate state, federal or foreign regulatory agencies or bodies necessary to own, lease and operate
their respective properties and to conduct their respective businesses as set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; (ii) all such Authorizations are valid and in full force and effect and the Company and its Subsidiaries are
in compliance with the terms and conditions of all such Authorizations; and (iii) neither the Company nor any of its Subsidiaries has
received notice of any revocation, termination or modification of, or non-compliance with, any such Authorization or has any reason to
believe that any such Authorization will not be renewed in the ordinary course, except where, in the case of clauses (i), (ii) and (iii),
the failure to possess, make or obtain such Authorizations (by possession, declaration or filing) would not, individually or in the aggregate,
result in a Material Adverse Change.
2.42 Ineligible Issuer.
At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness of the Registration
Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities and at the date hereof, the Company
was not and is not an “ineligible issuer”, as defined in Rule 405, without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
2.43 Environmental Laws.
The Company is in material compliance with all foreign, federal, state and local rules, laws and regulations relating to the use, treatment,
storage and disposal of hazardous or toxic substances or waste and protection of health and safety or the environment which are applicable
to its business (“Environmental Laws”). There has been no storage, generation, transportation, handling, treatment,
disposal, discharge, emission, or other release of any kind of toxic or other wastes or other hazardous substances by, due to, or caused
by the Company (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company is or may otherwise be
liable) upon any of the property now or previously owned or leased by the Company, or upon any other property, in violation of any law,
statute, ordinance, rule, regulation, order, judgment, decree or permit or which would, under any law, statute, ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit, give rise to any liability; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the environment surrounding such property of any toxic or other wastes
or other hazardous substances with respect to which the Company has knowledge.
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2.44 Real Property.
Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its Subsidiaries
have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real or personal property
which are material to the business of the Company and its Subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances,
security interests, claims and defects that do not, singly or in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the Company or its Subsidiaries; and all of the leases and subleases
material to the business of the Company and its Subsidiaries, considered as one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, are in full
force and effect, and neither the Company nor any Subsidiary has received any notice of any material claim of any sort that has been asserted
by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such Subsidiary to the continued possession of the leased or subleased premises under any such
lease or sublease.
2.45 Contracts Affecting
Capital. There are no transactions, arrangements or other relationships between and/or among the Company, any of its affiliates (as
such term is defined in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including, but not limited to, any
structured finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s
or its Subsidiaries’ liquidity or the availability of or requirements for their capital resources required to be described or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus which have not been described or incorporated
by reference as required.
2.46 Loans to Directors
or Officers. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business)
or guarantees or indebtedness by the Company or its Subsidiaries to or for the benefit of any of the officers or directors of the Company,
its Subsidiaries or any of their respective family members, except as disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
2.47 Smaller Reporting
Company. As of the time of filing of the Registration Statement, the Company was a “smaller reporting company”, as defined
in Rule 12b-2 of the Exchange Act Regulations.
2.48 Emerging Growth Company.
From the time of the initial filing of the Registration Statement with the Commission through the date hereof, the Company has been and
is an “emerging growth company,” as defined in Section 2(a) of the Securities Act.
2.49 Incorporated Documents. The
documents incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the Pricing Disclosure
Package and the Prospectus, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange
Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The Company meets the requirements
to incorporate documents by reference in the Registration Statement pursuant to General Instruction VII to Form S-1 under the
Securities Act.
2.50 Industry Data.
The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus
are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or represent the
Company’s good faith estimates that are made on the basis of data derived from such sources.
2.51 Minute Books.
The minute books of the Company have been made available to the Underwriter and counsel for the Underwriter, and such books (i) contain
a complete summary of all meetings and actions of the board of directors (including each board committee) and stockholders of the Company
(or analogous governing bodies and interest holders, as applicable), and each of its Subsidiaries since the time of its respective incorporation
or organization through the date of the latest meeting and action, and (ii) accurately in all material respects reflect all transactions
referred to in such minutes. There are no material transactions, agreements, dispositions or other actions of the Company that are not
properly approved and/or accurately and fairly recorded in the minute books of the Company, as applicable.
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2.52 Integration.
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 the Offering to be integrated
with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such securities under
the Securities Act.
2.53 No Stabilization.
Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent of the Underwriter) has
taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause
or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Public Securities.
2.54 Confidentiality and
Non-Competition. To the Company’s knowledge, no director, officer, key employee or consultant of the Company is subject to any
confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer or prior employer that could
reasonably be expected to materially affect his or her ability to be and act in his or her respective capacity with the Company or be
expected to result in a Material Adverse Change.
2.55 Electronic Road Show.
The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) of the Securities Act Regulations
such that no filing of any “road show” (as defined in Rule 433(h) of the Securities Act Regulations) is required in
connection with the Offering.
2.56 Margin Securities.
The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal
Reserve System (the “Federal Reserve Board”), and none of the proceeds of the Offering will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any margin security or for any other purpose which might cause any of the shares of Common Stock to be considered
a “purpose credit” within the meaning of Regulation T, U or X of the Federal Reserve Board.
3. Covenants of the Company. The Company
covenants and agrees as follows:
3.1 Amendments to Registration
Statement. The Company shall deliver to the Underwriter, prior to filing, any amendment or supplement to the Registration Statement
or Prospectus proposed to be filed after the Effective Date and shall not file any such amendment or supplement to which the Underwriter
shall reasonably object in writing.
3.2 Federal Securities
Laws.
3.2.1. Compliance.
The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 430A of the Securities Act Regulations, and will notify
the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall
become effective or any amendment or supplement to the Prospectus shall have been filed; (ii) of the receipt of any comments from the
Commission; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information; (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus, or of the suspension of the qualification of the Public Securities and Underwriter’s Securities for offering
or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant
to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding
under Section 8A of the Securities Act in connection with the Offering of the Public Securities and Underwriter’s Securities. The
Company shall effect all filings required under Rule 424(b) of the Securities Act Regulations, in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company shall use its best efforts to prevent the issuance of any stop order, prevention
or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
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3.2.2. Continued Compliance.
The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations so
as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement and in the Registration Statement,
the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Public Securities is (or, but for
the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”), would be) required by the Securities
Act to be delivered in connection with sales of the Public Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriter or for the Company, to (i) amend the Registration Statement in order that
the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) amend or supplement the Pricing Disclosure Package or the Prospectus
in order that the Pricing Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the Pricing Disclosure
Package or the Prospectus, as the case may be, in order to comply with the requirements of the Securities Act or the Securities Act Regulations,
the Company will promptly (A) give the Underwriter notice of such event; (B) prepare any amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement, the Pricing Disclosure Package or the Prospectus comply with
such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Underwriter with copies of any such
amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or
use any such amendment or supplement to which the Underwriter or counsel for the Underwriter shall reasonably object. The Company will
furnish to the Underwriter such number of copies of such amendment or supplement as the Underwriter may reasonably request. The Company
shall give the Underwriter notice of its intention to make any such filing from the Applicable Time until the later of the Closing Date
and the exercise in full or expiration of the Over-allotment Option specified in Section 1.2 hereof and will furnish the Underwriter with
copies of the related document(s) a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or
use any such document to which the Underwriter or counsel for the Underwriter shall reasonably object.
3.2.3. Exchange Act Registration.
For a period of three (3) years after the date of this Agreement, the Company shall use its best efforts to maintain the registration
of the shares of Common Stock under the Exchange Act. The Company shall not deregister the shares of Common Stock under the Exchange Act
without the prior written consent of the Underwriter.
3.2.4. Free Writing Prospectuses.
The Company agrees that, unless it obtains the prior written consent of the Underwriter, it shall not make any offer relating to the Public
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus”,
or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that
the Underwriter shall be deemed to have consented to each Issuer General Use Free Writing Prospectus and any “road show that is
a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Underwriter. The Company represents
that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Underwriter
as an “issuer free writing prospectus”, as defined in Rule 433, and that it has complied and will comply with the applicable
requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping.
If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or
included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly
notify the Underwriter and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission.
3.3 Delivery to the Underwriter
of Registration Statements. The Company has delivered or made available or shall deliver or make available to the Underwriter and
counsel for the Underwriter, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto
(including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Underwriter,
without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits), upon
receipt of a written request therefor from the Underwriter. The copies of the Registration Statement and each amendment thereto furnished
to the Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
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3.4 Delivery to the Underwriter
of Prospectuses. The Company has delivered or made available or will deliver or make available to the Underwriter, without charge,
as many copies of each Preliminary Prospectus as the Underwriter reasonably requested, and the Company hereby consents to the use of such
copies for purposes permitted by the Securities Act. The Company will furnish to the Underwriter, without charge, during the period when
a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations, would
be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter
may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.5 Effectiveness
and Events Requiring Notice to the Underwriter. The Company shall use commercially reasonable efforts to cause the Registration Statement
(or another registration statement registering the offer and sale of the Public Securities and the Underwriter’s Securities under
the Securities Act) to remain effective with a current prospectus until the latest of (a) nine (9) months after the Applicable Time, (b)
the date that the Warrants have been exercised in full or expired by their terms and (c) the date that the Underwriter’s Warrant
has been exercised in full or expired by its terms. The Company shall notify the Underwriter immediately and confirm the notice in writing:
(i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of
any stop order or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any state securities
commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction
or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing
of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional
information from the Commission; and (vi) of the happening of any event during the period described in this Section 3.5 that, in the judgment
of the Company, makes any statement of a material fact made in the Registration Statement, the Pricing Disclosure Package or the Prospectus
untrue or that requires the making of any changes in (a) the Registration Statement in order to make the statements therein not misleading,
or (b) in the Pricing Disclosure Package or the Prospectus in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification
at any time, the Company shall make every reasonable effort to obtain promptly the lifting of such order.
3.6 Review of Financial
Statements. For a period of three (3) years after the date of this Agreement, the Company, at its expense, shall cause its regularly
engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the
three fiscal quarters immediately preceding the announcement of any quarterly financial information.
3.7 Listing. The Company
shall use its best efforts to maintain the listing of the shares of Common Stock (including the Public Securities) on the Exchange for
at least two (2) years from the date of this Agreement.
3.8 Reports to the Underwriter.
3.8.1. Periodic Reports,
etc. For a period of three (3) years after the date of this Agreement, the Company shall furnish or make available to the Underwriter
copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders
of any class of its securities and also promptly furnish to the Underwriter: (i) a copy of each periodic report the Company shall be required
to file with the Commission under the Exchange Act and the Exchange Act Regulations; (ii) a copy of every press release and every news
item and article with respect to the Company or its affairs which was released by the Company to the general public; (iii) a copy of each
Form 8-K prepared and filed by the Company; (iv) five copies of each registration statement filed by the Company under the Securities
Act; and (v) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company
as the Underwriter may from time to time reasonably request; provided the Underwriter shall sign, if requested by the Company, a Regulation
FD compliant confidentiality agreement which is reasonably acceptable to the Underwriter and Underwriter’s Counsel in connection
with the Underwriter’s receipt of such information. Documents filed with the Commission pursuant to its EDGAR system or released
over national wire services or other Regulation FD compliant methods shall be deemed to have been delivered to the Underwriter pursuant
to this Section 3.8.1. Any documents not filed with the Commission pursuant to its EDGAR system or otherwise released via Regulation FD
compliant methods shall be delivered to cchampion@newbridgesecurities.com.
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3.8.2. Transfer Agent;
Transfer Sheets; Warrant Agent. For a period of one (1) year after the date of this Agreement, the Company shall retain a transfer
agent and registrar (the “Transfer Agent”) and shall furnish to the Underwriter at the Company’s sole cost and
expense such transfer sheets of the Company’s securities as the Underwriter may reasonably request, including the daily and monthly
consolidated transfer sheets of the Transfer Agent and DTC. For as long as the Common Warrants are outstanding, the Company shall retain
a warrant agent. Broadridge Corporate Issuer Solutions, LLC is acceptable to the Underwriter to act as Transfer Agent for the shares of
Common Stock and Warrant Agent for the Common Warrants under the Warrant Agency Agreement.
3.8.3. Trading Reports.
For a period of one (1) year after the date of this Agreement, the Company shall provide to the Underwriter, at the Company’s expense,
such reports published by the Exchange relating to price trading of the Public Securities, as the Underwriter shall reasonably request.
Any reports published by the Exchange and available on its website shall be deemed to have been delivered to the Underwriter pursuant
to this Section 3.8.3.
3.9 Payment of Expenses
3.9.1 General Expenses
Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the
extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement,
including, but not limited to: (a) all filing fees and communication expenses relating to the registration of the shares of Common Stock
to be sold in the Offering (including the Option Securities) with the Commission; (b) all Public Offering System filing fees associated
with the review of the Offering by FINRA; (c) all fees and expenses relating to the listing of such Public Securities on the Exchange;
(d) all fees, expenses and disbursements relating to the registration, qualification or exemption of the Public Securities under the securities
laws of such foreign jurisdictions as the Company and the Underwriter together determine; (e) the costs of all mailing and printing of
the offering documents (including, without limitation, this Agreement and, if appropriate, any Agreement Among Underwriter, Selected Dealers’
Agreement, Underwriter’s Questionnaire and Power of Attorney), Registration Statements, Prospectuses and all amendments, supplements
and exhibits thereto and as many preliminary and final Prospectuses as the Underwriter may reasonably deem necessary; (f) the costs of
preparing, printing and delivering certificates representing the Public Securities; (g) fees and expenses of the transfer agent for the
Common Stock; and (h) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriter.
The Company will reimburse the Underwriter for a certain amount of its accountable expenses including actual accountable road show expenses
for the offering; the cost associated with the Underwriter’s use of book-building and compliance software for the offering, reasonable
fees of: (i) the Underwriter’s Counsel up to an amount of $125,000 (which maximum shall apply solely to such fees and disbursements
of counsel and not to other fees and expenses provided for in this Section 3.9); and (ii) background checks of the Company’s officers
and directors; preparation of bound volumes and Lucite cube mementos in such quantities as the Underwriter may reasonably request. For
the sake of clarity, such accountable, out-of-pocket costs and expenses that the Company shall reimburse the Underwriter shall not exceed
$125,000. For the avoidance of doubt, the $125,000 cap in no way limits or impairs the indemnification and contribution provisions of
this Agreement. The Company delivered to Konik Capital Partners, LLC, a division of T.R. Winston & Company, LLC, the former underwriter
(the “Former Underwriter”), $25,000 as an advance, which was paid as a retainer to Underwriter’s Counsel and
will be credited against the accountable expenses actually incurred by the Underwriter (the “Advance”). The Advance
or any part thereof will be refunded to the Company to the extent not actually incurred regardless of the termination of this Agreement,
in accordance with FINRA Rule 5110(g)(4)(A). The Underwriter may deduct from the net proceeds of the Offering payable to the Company
on the Closing Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company to the Underwriter.
3.10 Application of Net
Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent with the application thereof
described under the caption “Use of Proceeds” in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
3.11 Delivery of
Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon as practicable,
but not later than the first day of the fifteenth (15th) full calendar month following the date of this Agreement, an earnings statement
(which need not be certified by an independent registered public accounting firm unless required by the Securities Act or the Securities
Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities Act) covering a period of
at least twelve (12) consecutive months beginning after the date of this Agreement.
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3.12 Stabilization.
Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent of the Underwriter) has
taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause
or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Public Securities.
3.13 Internal Controls.
The Company shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions
are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order
to permit preparation of financial statements in accordance with GAAP and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
3.14 Accountants.
As of the date of this Agreement, the Company has retained an independent registered public accounting firm reasonably acceptable to the
Underwriter, and the Company shall continue to retain a nationally recognized independent registered public accounting firm for a period
of at least three (3) years after the date of this Agreement. The Underwriter acknowledges that Crowe LLP is acceptable to the Underwriter.
3.15 FINRA. For a
period of ninety (90) days from the Closing Date, the Company shall advise the Underwriter (who shall make an appropriate filing with
FINRA) if it is or becomes aware that (i) any officer or director of the Company, (ii) any beneficial owner of 10% or more of any class
of the Company’s securities or (iii) any beneficial owner of the Company’s unregistered equity securities which were acquired
during the 180 days immediately preceding the filing of the Registration Statement is or becomes an affiliate or associated person of
a FINRA member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
3.16 No Fiduciary Duties.
The Company acknowledges and agrees that the Underwriter’s responsibility to the Company is solely contractual in nature and that
neither the Underwriter nor its affiliates nor any selling agent shall be deemed to be acting in a fiduciary capacity, or otherwise owes
any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other transactions contemplated by
this Agreement.
3.17 Company Lock-Up Agreements.
3.17.1. Restriction on
Sales of Capital Stock. The Company, on behalf of itself and any successor entity, agrees that, without the prior written consent
of the Underwriter, it will not, for a period of 120 days after the initial Closing Date (the “Lock-Up Period”), (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock of the Company
or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, subject to customary exceptions
for exercises or conversion of outstanding derivative securities and equity grants approved under the Company’s 2024 Stock Incentive
Plan; (ii) file or caused to be filed any registration statement with the Commission relating to the offering of any shares of capital
stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company other
than a Form S-8; (iii) complete any offering of debt securities of the Company, other than entering into a line of credit with a traditional
bank, or (iv) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of capital stock of the Company, whether any such transaction described in clause (i), (ii), (iii) or (iv) above is to be
settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise.
The restrictions contained
in this Section 3.17.1 shall not apply to (i) the Public Securities to be sold hereunder, (ii) any shares of Common Stock issued upon
the exercise of an option or other security outstanding on the date hereof, which is disclosed in the Registration Statement, Pricing
Disclosure Package and Prospectus, provided that such options, warrants, and 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 or
to extend the term of such securities, (iii) such issuances of options or grants of restricted stock or other equity-based awards under
the Company’s 2024 Stock Incentive Plan, as amended, and the issuance of shares issuable upon exercise of any such equity-based
awards, (iv) the filing of registration statements on Form S-8, and (v) the issuance of securities in connection with mergers, acquisitions,
joint ventures, licensing arrangements or any other similar non-capital raising transactions, provided that in each of (ii), (iii) and
(v) above, the underlying shares shall be restricted from sale during the entire Lock-Up Period.
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3.18 Release of D&O
Lock-Up Period. If the Underwriter, in its sole discretion, agrees to release or waive the restrictions set forth in the Lock-Up Agreements
described in Section 2.25 hereof for an officer or director of the Company and provides the Company with notice of the impending release
or waiver at least three (3) Business Days before the effective date of the release or waiver, the Company agrees to announce the impending
release or waiver by a press release substantially in the form of Exhibit E hereto through a major news service at least two (2)
Business Days before the effective date of the release or waiver.
3.19 Blue Sky Qualifications.
The Company shall use its best efforts, in cooperation with the Underwriter, if necessary, to qualify the Public Securities for offering
and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Underwriter may designate
and to maintain such qualifications in effect so long as required to complete the distribution of the Public Securities; provided, however,
that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject.
3.20 Reporting Requirements.
The Company, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172,
would be) required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant
to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations. Additionally, the Company shall
report the use of proceeds from the issuance of the Public Securities as may be required under Rule 463 under the Securities Act Regulations.
3.21 Sarbanes-Oxley.
The Company shall at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.
3.22 Press Releases.
Prior to the Closing Date, the Company shall not issue any press release or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial, or otherwise, or earnings, business affairs, or business prospects (except
for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and
of which the Underwriter is notified), without the prior written consent of the Underwriter, which consent shall not be unreasonably withheld,
unless in the judgment of the Company and its counsel, and after notification to the Underwriter, such press release or communication
is required by law.
4. Conditions of Underwriter’s
Obligations. The obligations of the Underwriter to purchase and pay for the Public Securities, as provided herein, shall be subject
to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of each of the Closing
Date and the Option Closing Date, if any; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions
hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the following conditions:
4.1 Regulatory Matters.
4.1.1. Effectiveness of
Registration Statement; Rule 430A Information. The Registration Statement has become effective not later than 5:00 p.m., Eastern time,
on the date of this Agreement or such later date and time as shall be consented to in writing by the Underwriter, and, at each of the
Closing Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s
knowledge, contemplated by the Commission. The Company has complied with each request (if any) from the Commission for additional information.
The Prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame
required by Rule 424(b) (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been
filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.
4.1.2. FINRA Clearance.
On or before the date of this Agreement, the Underwriter shall have received clearance from FINRA as to the amount of compensation allowable
or payable to the Underwriter as described in the Registration Statement.
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4.1.3. Exchange Stock
Market Clearance. On the Closing Date and the Option Closing Date, if any, the Company’s shares of Common Stock shall have been
approved for listing on the Exchange. Prior to the Closing Date and the Option Closing Date, if any, the Company shall have submitted
a Listing of Additional Shares Notification Form to the Exchange for the Public Securities and the shares of Common Stock issuable upon
exercise of the Underwriter’s Warrant.
4.2 Company Counsel
Matters.
4.2.1. Closing Date Opinion
of Counsel. On the Closing Date, the Underwriter shall have received the favorable opinion and negative assurance letter of Greenberg
Traurig, LLP, counsel to the Company (the “Company Counsel”), as to the federal law of the United States of America
and the law of the State of New York, dated the Closing Date and addressed to the Underwriter, in form and substance acceptable to the
Underwriter.
4.2.2. Opinion of Special
Intellectual Property Counsel for the Company. On the Closing Date, the Underwriter shall have received the opinion of Casimir
Jones, S.C., special intellectual property counsel for the Company, dated the Closing Date, addressed to the Underwriter, in form and
substance acceptable to the Underwriter.
4.2.3. Option Closing
Date Opinions of Counsel. On the Option Closing Date, if any, the Underwriter shall have received the favorable opinions and
negative assurance letters, as applicable, of each counsel listed in Sections 4.2.1 and 4.2.2, dated the Option Closing Date, addressed
to the Underwriter and in form and substance reasonably satisfactory to the Underwriter, confirming as of the Option Closing Date, the
opinions and statements made by such counsel in their respective opinions delivered on the Closing Date.
4.2.4. Reliance. In
rendering such opinion, such counsel may rely: (i) as to matters involving the application of laws other than the laws of the United States
and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if
at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Underwriter) of other counsel reasonably acceptable
to the Underwriter, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they deem proper, on certificates
or other written statements of officers of the Company and officers of departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company, provided that copies of any such statements or certificates shall
be delivered to Underwriter’s Counsel if requested. The opinions contained in Sections 4.2.1 and 4.2.2 and any opinion relied upon
with respect to the foregoing shall include a statement to the effect that it may be relied upon by Underwriter’s Counsel in its
opinion delivered to the Underwriter.
4.3 Comfort Letters.
4.3.1. Cold Comfort Letter.
At the time this Agreement is executed the Underwriter shall have received a cold comfort letter containing statements and information
of the type customarily included in accountants’ comfort letters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, addressed to the Underwriter and
in form and substance satisfactory in all respects to the Underwriter and to the Auditor, dated as of the date of this Agreement.
4.3.2. Bring-down Comfort
Letter. At each of the Closing Date and the Option Closing Date, if any, the Underwriter shall have received from the Auditor a letter,
dated as of the Closing Date or the Option Closing Date, as applicable, to the effect that the Auditor reaffirms the statements made in
the letter furnished pursuant to Section 4.3.1, except that the specified date referred to shall be a date not more than three (3) Business
Days prior to the Closing Date or the Option Closing Date, as applicable.
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4.4 Officers’
Certificates.
4.4.1. Officers’
Certificate. The Company shall have furnished to the Underwriter a certificate, dated the Closing Date and any Option Closing Date
(if such date is other than the Closing Date), of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers
have carefully examined the Registration Statement, the Pricing Disclosure Package, any Issuer Free Writing Prospectus and the Prospectus
and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time and as of the Closing Date (or
any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the
Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than
the Closing Date), any Issuer Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date
is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of
the Closing Date, did not include any untrue statement of a material fact and did not 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, (ii) since the effective
date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration
Statement, the Pricing Disclosure Package or the Prospectus, (iii) to the best of their knowledge after reasonable investigation, as of
the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company
in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date),
and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference
in the Pricing Disclosure Package, any Material Adverse Change in the financial position or results of operations of the Company, or any
change or development that, singularly or in the aggregate, would involve a Material Adverse Change or a prospective Material Adverse
Change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company, except
as set forth in the Prospectus.
4.4.2. Secretary’s
Certificate. At each of the Closing Date and the Option Closing Date, if any, the Underwriter shall have received a certificate of
the Company signed by the Secretary of the Company, dated the Closing Date or the Option Closing Date, as the case may be, respectively,
certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii)
that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been
modified; (iii) as to the accuracy and completeness of all correspondence between the Company or its counsel and the Commission; and (iv)
as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
4.5 No Material Changes.
Prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have been no Material Adverse Change or
development involving a prospective material adverse change in the condition or prospects or the business activities, financial or otherwise,
of the Company from the latest dates as of which such condition is set forth in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company
or any Insider before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision,
ruling or finding may materially adversely affect the business, operations, properties, assets, prospects or financial condition or income
of the Company, except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus; (iii) no stop order
shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission;
and (iv) the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendments or supplements thereto shall
contain all material statements which are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations
and shall conform in all material respects to the requirements of the Securities Act and the Securities Act Regulations, and neither the
Registration Statement, the Pricing Disclosure Package nor the Prospectus nor any amendment or supplement thereto shall contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
4.6 Corporate Proceedings.
All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Public
Securities, the Registration Statement, the Pricing Disclosure Package and the Prospectus and all other legal matters relating to this
Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for
the Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
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4.7 Delivery of Agreements.
4.7.1. Lock-Up Agreements.
On or before the date of this Agreement, the Company shall have delivered to the Underwriter executed copies of the Lock-Up Agreements
from each of the persons and entities listed in Schedule 3 hereto.
4.7.2. Underwriter’s
Warrant Agreement. On the Closing Date and the Option Closing Date, if any, the Company shall have delivered to the Underwriter executed
copies of the Underwriter’s Warrant Agreement.
4.8 Additional Documents.
At the Closing Date and at each Option Closing Date (if any) Underwriter’s Counsel shall have been furnished with such documents
and opinions as they may require for the purpose of enabling Underwriter’s Counsel to deliver an opinion to the Underwriter, or
in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities and the Underwriter’s
Securities as herein contemplated shall be satisfactory in form and substance to the Underwriter and Underwriter’s Counsel.
5. Indemnification.
5.1 Indemnification of
the Underwriter.
5.1.1. General. Subject
to the conditions set forth below, the Company agrees to indemnify and hold harmless the Underwriter, its affiliates and each of its and
their respective directors, officers, members, employees, representatives, partners, shareholders, affiliates, counsel, and agents and
each person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (collectively the “Underwriter Indemnified Parties,” and each an “Underwriter Indemnified Party”),
against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses
reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever,
whether arising out of any action between any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter
Indemnified Parties and any third party, or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange
Act or any other statute or at common law or otherwise or under the laws of foreign countries (a “Claim”), (i) arising
out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (A) the Registration Statement,
the Pricing Disclosure Package, any Preliminary Prospectus, the Prospectus, or in any Issuer Free Writing Prospectus (as from time to
time each may be amended and supplemented); (B) any materials or information provided to investors by, or with the approval of, the Company
in connection with the marketing of the Offering, including any “road show” or investor presentations made to investors by
the Company (whether in person or electronically); or (C) any application or other document or written communication (in this Section
5, collectively called “application”) executed by the Company or based upon written information furnished by the Company
in any jurisdiction in order to qualify the Public Securities and Underwriter’s Securities under the securities laws thereof or
filed with the Commission, any state securities commission or agency, the Exchange or any other national securities exchange; or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, unless such statement or omission was made in reliance upon, and in conformity
with, the Underwriter Information or (ii) otherwise arising in connection with or allegedly in connection with the Offering. The Company
also agrees that it will reimburse the Underwriter Indemnified Party for all fees and expenses (including but not limited to any and all
legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever, whether arising out of any action between any of the Underwriter Indemnified Parties and the Company or between
any of the Underwriter Indemnified Parties and any third party, or otherwise) (collectively, the “Expenses”), and further
agrees wherever and whenever possible to advance payment of Expenses as they are incurred by an Underwriter Indemnified Party in investigating,
preparing, pursuing or defending any Claim.
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5.1.2. Procedure.
If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant
to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and
the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the approval of such Underwriter
Indemnified Party) and payment of actual expenses if an Underwriter Indemnified Party requests that the Company do so. Such Underwriter
Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Company, and shall be advanced by the Company; provided, however, that in no event shall the Company be
liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Underwriter
Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. The Company shall not be liable for any settlement of any action effected without its
consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Underwriter,
settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect
of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Underwriter Indemnified
Party is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of the Underwriter
Indemnified Party, acceptable to such Underwriter Indemnified Party, from all liabilities, expenses and claims arising out of such action
for which indemnification or contribution may be sought and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any Underwriter Indemnified Party.
5.2 Indemnification of
the Company. The Underwriter agrees to indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the foregoing indemnity from the Company to the Underwriter,
as incurred, but only with respect to untrue statements or omissions made in the Registration Statement, any Preliminary Prospectus, the
Pricing Disclosure Package or Prospectus or any amendment or supplement thereto or in any application, in reliance upon, and in strict
conformity with, the Underwriter Information. In case any action shall be brought against the Company or any other person so indemnified
based on any Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package or Prospectus or any amendment or supplement
thereto or any application, and in respect of which indemnity may be sought against the Underwriter, the Underwriter shall have the rights
and duties given to the Company, and the Company and each other person so indemnified shall have the rights and duties given to the Underwriter
by the provisions of Section 5.1.2. The Company agrees promptly to notify the Underwriter of the commencement of any litigation or proceedings
against the Company or any of its officers, directors or any person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, in connection with the issuance and sale of the Public Securities or in connection
with the Registration Statement, the Pricing Disclosure Package, the Prospectus, or any Issuer Free Writing Prospectus.
5.3 Contribution.
5.3.1. Contribution Rights.
If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company, on the one hand, and the Underwriter, on the other, from the Offering of the
Public Securities, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the
one hand, and the Underwriter, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Underwriter, on the other, with respect to such Offering shall be deemed to be in the same proportion
as the total net proceeds from the Offering of the Public Securities purchased under this Agreement (before deducting expenses) received
by the Company, as set forth in the table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and
commissions received by the Underwriter with respect to the Public Securities purchased under this Agreement, as set forth in the table
on the cover page of the Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company
or the Underwriter, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriter agree that it would not be just and equitable if contributions pursuant to
this Section 5.3.1 were to be determined by pro rata allocation (even if the Underwriter were treated as one entity for such purpose)
or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above
in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 5.3.1 in no event shall the Underwriter be required to contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by the Underwriter with respect to the Offering of the Public Securities exceeds the amount of any
damages that the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation.
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5.3.2. Contribution Procedure.
Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party (“contributing
party”), notify the contributing party of the commencement thereof, but the failure to so notify the contributing party will
not relieve it from any liability which it may have to any other party other than for contribution hereunder to the extent such failure
does not prejudice the party entitled to notice. In case any such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representative of the commencement thereof within the aforesaid 15 days, the contributing party will
be entitled to participate therein with the notifying party and any other contributing party similarly notified. Any such contributing
party shall not be liable to any party seeking contribution on account of any settlement of any claim, action or proceeding effected by
such party seeking contribution without the written consent of such contributing party. The contribution provisions contained in this
Section 5.3 are intended to supersede, to the extent permitted by law, any right to contribution under the Securities Act, the Exchange
Act or otherwise available.
6. [RESERVED].
7. Additional Covenants.
7.1 Board Composition
and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as members of the Board of Directors
and the overall composition of the Board comply with the Sarbanes-Oxley Act, with the Exchange Act and with the listing rules of the Exchange
or any other national securities exchange, as the case may be, in the event the Company seeks to have its Public Securities listed on
another exchange or quoted on an automated quotation system, and (ii) if applicable, at least one member of the Audit Committee of the
Board of Directors qualifies as an “audit committee financial expert,” as such term is defined under Regulation S-K and the
listing rules of the Exchange.
7.2 Prohibition on Press
Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity, without the Underwriter’s
prior written consent, which consent will not be unreasonably withheld, delayed or conditioned, for a period ending at 5:00 p.m., Eastern
time, on the first (1st) Business Day following (i) the later of the Option Closing Date and the twenty-fifth (25th) day after the Closing
Date if the Over-allotment Option has been exercised in full, or (ii) the forty-fifth (45th) day after the Closing Date if the Over-allotment
Option has not been exercised in full, other than normal and customary press releases or publicity issued in the ordinary course of the
Company’s business.
8. Effective Date of this Agreement and Termination Thereof.
8.1 Effective Date.
This Agreement shall become effective when both the Company and the Underwriter have executed the same and delivered counterparts of such
signatures to the other party.
8.2 Termination. The
Underwriter shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic or international
event or act or occurrence has materially disrupted, or in the Underwriter’s opinion will in the immediate future materially disrupt,
general securities markets in the United States; or (ii) if trading on the Exchange shall have been suspended or materially limited, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA
or by order of the Commission or any other government authority having jurisdiction; or (iii) if the United States shall have become involved
in a new war or an increase in major hostilities; or (iv) if a banking moratorium has been declared by a New York State or federal authority;
or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities markets;
or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other
calamity or malicious act which, whether or not such loss shall have been insured, will, in the Underwriter’s opinion, make it inadvisable
to proceed with the delivery of the Firm Securities or Option Securities; or (vii) if the Company is in material breach of any of its
representations, warranties or covenants hereunder; or (viii) if the Underwriter shall have become aware after the date hereof of such
a Material Adverse Change or such Material Adverse Change in general market conditions as in the Underwriter’s reasonable judgment
would make it impracticable to proceed with the offering, sale and/or delivery of the Public Securities or to enforce contracts made by
the Underwriter for the sale of the Public Securities.
26
8.3 Expenses. Notwithstanding
anything to the contrary in this Agreement, in the event that this Agreement shall not be carried out for any reason whatsoever, within
the time specified herein or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriter
its actual and accountable out-of-pocket expenses related to the transactions contemplated herein then due and payable (including the
fees and disbursements of Underwriter’s Counsel) up to $125,000 inclusive of the $25,000 Advance for accountable expenses previously
paid by the Company to the Former Underwriter to the extent such expenses are actually incurred and upon demand the Company shall pay
the full amount thereof to the Underwriter; provided, however, that such expense cap in no way limits or impairs the indemnification and
contribution provisions of this Agreement. Notwithstanding the foregoing, any advance received by the Underwriter will be reimbursed to
the Company to the extent not actually incurred in compliance with FINRA Rule 5110(g)(4)(A).
8.4 Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether
or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force and effect and shall not be in
any way affected by, such election or termination or failure to carry out the terms of this Agreement or any part hereof.
8.5 Representations, Warranties,
Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by
or on behalf of the Underwriter or its affiliates or selling agents, any person controlling the Underwriter, its officers or directors
or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
9. Miscellaneous.
9.1 Notices. All communications
hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered or certified mail, return
receipt requested), personally delivered or sent by electronic mail transmission and confirmed and shall be deemed given when so delivered
and confirmed or if mailed, two (2) days after such mailing.
If to the Underwriter:
Newbridge Securities Corporation
1200 N Federal Hwy, Suite 400
Boca Raton, Florida 33432
Attention: Chad D. Champion,
Senior Managing Director,
Head of Investment Banking
and Capital Markets
e-mail: cchampion@newbridgesecurities.com
with a copy (which shall not constitute notice)
to:
Lucosky Brookman LLP
101 Wood Avenue South, 5th
Floor
Woodbridge, NJ 08830
Attention: Lawrence Metelitsa,
Esq. and Patrick J. Egan, Esq.
e-mail: lmetelitsa@lucbro.com;
pegan@lucbro.com
27
If to the Company:
Actuate Therapeutics, Inc.
1751 River Run, Suite 400
Fort Worth, Texas 76107
Attention: Daniel M. Schmitt,
President and Chief Executive Officer
e-mail: dschmitt@actuatetherapeutics.com
with a copy (which shall not constitute notice)
to:
Greenberg Traurig, LLP
18565 Jamboree Road, Suite
500
Irvine, California 92612
Attention: Daniel K. Donahue,
Esq.
e-mail: donahued@gtlaw.com
9.2 Headings. The
headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
9.3 Amendment. This
Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.4 Entire Agreement.
This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitutes
the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersedes all prior agreements
and understandings of the parties, oral and written, with respect to the subject matter hereof. Notwithstanding anything to the contrary
set forth herein, it is understood and agreed by the parties hereto that all other terms and conditions of that certain engagement letter,
dated October 16, 2026, between the Company and the Underwriter, shall remain in full force and effect.
9.5 Binding Effect.
This Agreement shall inure solely to the benefit of and shall be binding upon the Underwriter, the Company and the controlling persons,
directors and officers referred to in Section 5 hereof, and their respective successors, legal representatives, heirs and assigns, and
no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of
this Agreement or any provisions herein contained. The term “successors and assigns” shall not include a purchaser,
in its capacity as such, of securities from the Underwriter.
9.6 Governing Law; Consent
to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance with the laws of the
State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that any action, proceeding
or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in the New York Supreme Court,
County of New York, or in the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent
an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered
or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.1 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company agrees
that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’
fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Underwriter hereby irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
28
9.7 Execution in Counterparts.
This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which
shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective
when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Delivery
of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall constitute valid and sufficient delivery thereof.
9.8 Waiver, etc. The
failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed or construed to
be a waiver of any such provision, nor to in any way affect the validity of this Agreement or any provision hereof or the right of any
of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance or non-fulfillment
of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the party or parties
against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall
be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
********************
(Signature Page Follows)
29
If the foregoing correctly
sets forth the understanding between the Underwriter and the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
ACTUATE THERAPEUTICS, INC.
By:
/s/ Daniel M.
Schmitt
Name:
Daniel M. Schmitt
Title:
President and Chief Executive Officer
Confirmed as of the date first written above:
NEWBRIDGE SECURITIES
CORPORATION
By:
/s/ Chad D. Champion
Name:
Chad D. Champion
Title:
Senior Managing Director, Head of Equity Capital Markets and Investment Banking
[Signature
Page]
Actuate
Therapeutics, Inc. – Underwriting Agreement
SCHEDULE 1
Total Number of Firm
Securities to be Purchased
Total Number of Option
Securities to be Purchased
if the Over-Allotment
Option is Fully Exercised
Underwriter
Firm Shares___
Firm Common Warrants
Option Shares
Option Common Warrants
Newbridge Securities Corporation
30,985,900
15,492,950
4,647,885
2,323,942
Total
31
SCHEDULE 2-A
Pricing Information
Number of Firm Shares:
30,985,900
Number of shares underlying Firm Common Warrants:
15,492,950
Number of Option Shares:
4,647,885
Number of shares underlying Option Common Warrants:
2,323,942
Combined Public Offering Price per two Firm Shares and one Firm Common Warrant:
$0.71
Underwriting Discount per two Firm Shares and one Firm Common Warrant:
$0.0497
Proceeds to Company per two Firm Shares and one Firm Common Warrant (before expenses)
$0.6603
32
SCHEDULE 2-B
Issuer General Use Free Writing Prospectuses
None
33
SCHEDULE 3
List of Lock-Up Parties
1.
Daniel M. Schmitt (President, Chief Executive Officer and Director)(1)
2.
Paul Lytle (Chief Financial Officer)(1)
3.
Andrew Mazur (Chief Operating Officer) (1)
4.
Aaron G.L. Fletcher, Ph.D. (Director and Chairperson)(2)
5.
Martin H. Huber, M.D. (Director) (1)
6.
Jason Keyes (Director) (1)
7.
Amy Ronneberg (Director) (1)
8.
Roger Sawhney, M.D. (Director) (1)
9.
Todd Thomson (Director) (2)
10.
Daniel Zabrowski, Ph.D. (Director) (1)
11.
Bios Equity Affiliated Funds(2)(3)
12.
Kairos Venture Affiliated Funds(2)(4)
__________________________
1 The Lock-Up Period
shall be for a period of 120 days after the close of the Public Offering. See the form of Lock-Up Agreement attached as Exhibit D
to the Underwriting Agreement.
2 The Lock-Up Period
shall be for a period of two years after the close of the Public Offering. See the form of Lock-Up Agreement attached as Exhibit D
to the Underwriting Agreement.
3 Includes the following
entities: Bios Actuate Co-Invest I, LP, Bios Actuate Co-Invest II, LP, Bios Actuate Co-Invest III,
LP, Bios Fund I QP, LP, Bios Fund I, LP, Bios Fund II NT, LP, Bios Fund II QP, LP, Bios Fund II, LP, Bios Fund III NT, LP, Bios Fund III
QP, LP, Bios Fund III, LP, BP Directors, LP, Bios Clinical Opportunity Fund, LP and Bios 2024 Co-Invest, LP.
4 Includes the following
entities: Kairos SPV Fund LLC, Kairos Venture Opportunities I LP, Kairos Venture Partners II LP, and Kairos-Actuate SPV LP.
34
EXHIBIT A
Form of Common Warrant
35
EXHIBIT B
Form of Warrant Agency Agreement
36
EXHIBIT C
Form of Underwriter’s Warrant Agreement
THE REGISTERED HOLDER OF THIS PURCHASE WARRANT
BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED
HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD
OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) NEWBRIDGE SECURITIES CORPORATION, OR
AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF NEWBRIDGE SECURITIES CORPORATION
OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS PURCHASE WARRANT IS NOT EXERCISABLE PRIOR
TO [●], 2027. [THE DATE THAT IS 180 DAYS FROM THE EFFECTIVE DATE OF THE OFFERING]. VOID AFTER 5:00 P.M., NEW YORK TIME, [●],
2031. [THE DATE THAT IS FIVE YEARS FROM THE EFFECTIVE DATE OF THE OFFERING].
WARRANT TO PURCHASE COMMON STOCK
ACTUATE THERAPEUTICS, INC.
Warrant Shares: _______1
Initial Exercise Date: ______, 20272
THIS WARRANT TO PURCHASE
COMMON STOCK (the “Warrant”) certifies that, for value received, Newbridge Securities Corporation 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 __________, 20272 (the “Initial Exercise Date”) and, in accordance with FINRA
Rule 5110(g)(8)(A), prior to 5:00 p.m. (New York time) on the date that is five (5) years following the Effective Date (the “Termination
Date”) but not thereafter, to subscribe for and purchase from ACTUATE THERAPEUTICS, INC., a Delaware corporation (the “Company”),
up to ______ shares (the “Warrant Shares”) of Common Stock, par value $0.000001 per share, of the Company
(the “Common Stock”), as subject to adjustment hereunder. The purchase price of one share of Common Stock under this
Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“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.
______________________
1
Equal to 3.5% of the aggregate number of Firm Shares and Option Shares sold in
the Offering.
2
One hundred eighty (180) days immediately following the Effective Date, which
is also the date of commencement of sales of the Common Stock in the Offering.
37
“Commission”
means the United States Securities and Exchange Commission.
“Effective Date”
means the effective date of the registration statement on Form S-1, as amended (File No. 333-299332), including any related prospectus
or prospectuses, for the registration of the Company’s Common Stock and the Warrant Shares under the Securities Act, that the Company
has filed with the Commission.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“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.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading Day”
means a day on which the Trading Market for the Common Stock 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
Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the NYSE American, or the New York Stock Exchange (or
any successors to any of the foregoing).
“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 a share of Common Stock for such date (or the nearest preceding date) on the OTCQB or OTCQX as applicable, (c) if Common Stock
is not then listed or quoted for trading on the OTCQB or OTCQX and if prices for Common Stock are then reported in the “Pink Sheets”
published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent
bid price per share of Common Stock so reported or (d) in all other cases, the fair market value of the Common Stock as determined by
an independent appraiser selected in good faith by the Holder and reasonably acceptable to the Company, the fees and expenses of which
shall be paid by the Company.
38
Section 2. Exercise.
a) 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 (or such other office or agency of the Company as it may designate by notice
in writing to the registered Holder at the address of the Holder appearing on the books of the Company) of a duly executed facsimile copy
(or e-mail attachment) of the Notice of Exercise Form annexed hereto as Exhibit A. Within two (2) Trading Days following the date
of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the 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 form be required. Notwithstanding anything herein to
the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all
of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant
to the Company for cancellation within five (5) Trading Days of the date 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 Form within two (2) Business Days of receipt of such notice.
The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph,
following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at
any given time may be less than the amount stated on the face hereof.
b) Exercise Price.
The exercise price per share of the Common Stock under this Warrant shall be $[●]3,
subject to adjustment hereunder (the “Exercise Price”).
c) Cashless Exercise.
After the Initial Exercise Date, in lieu of exercising this Warrant by delivering the aggregate Exercise Price by wire transfer or cashier’s
check, at the election of the Holder 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 the 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)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the VWAP on the Trading Day immediately preceding the date 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.
______________________
3
125% of the public offering price per share of Common Stock in the Offering.
39
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, and the holding period of the Warrants
being exercised may be tacked on to the holding period of the Warrant Shares. The Company agrees not to take any position contrary to
this Section 2(c).
Notwithstanding anything
herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant 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 its transfer agent to the
Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through
its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either
(A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder,
or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 and,
in either case, the Warrant Shares have been sold by the Holder prior to the Warrant Share Delivery Date (as defined below), 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 two (2) Trading Days after the delivery to the Company of the Notice of Exercise (such date, the “Warrant
Share Delivery Date”). If the Warrant Shares can be delivered via DWAC, the transfer agent shall have received from the Company,
at the expense of the Company, any legal opinions or other documentation required by it to deliver such Warrant Shares without legend
(subject to receipt by the Company of reasonable back up documentation from the Holder, including with respect to affiliate status) and,
if applicable and requested by the Company prior to the Warrant Share Delivery Date, the transfer agent shall have received from the Holder
a confirmation of sale of the Warrant Shares (provided the requirement of the Holder to provide a confirmation as to the sale of Warrant
Shares shall not be applicable to the issuance of unlegended Warrant Shares upon a cashless exercise of this Warrant if the Warrant Shares
are then eligible for resale pursuant to Rule 144(b)(1)). The Warrant Shares shall be deemed to have been issued, and Holder or any other
person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the
date the Warrant has been exercised, with payment to the Company of the Exercise Price (or by cashless exercise, if permitted) and all
taxes required to be paid by the Holder, if any, pursuant to Section 2(d)(vi) prior to the issuance of such shares, having been paid.
If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the second Trading
Day following 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 the second Trading Day following such Warrant Share Delivery Date until such Warrant Shares are delivered or
Holder rescinds such exercise.
ii. Delivery of New
Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon
surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission Rights.
If the Company fails to cause its transfer agent to deliver 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; provided, however, that the Holder shall
be required to return any Warrant Shares or Common Stock subject to any such rescinded exercise notice concurrently with the return to
Holder of the aggregate Exercise Price paid to the Company for such Warrant Shares and the restoration of Holder’s right to acquire
such Warrant Shares pursuant to this Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
40
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 its transfer agent to transmit to the Holder the Warrant Shares 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) 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.
v. No Fractional Shares
or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either
pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round
up to the next whole share.
vi. Charges, Taxes and
Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto as Exhibit B duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all transfer agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing of Books.
The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant
to the terms hereof.
viii. Signature. This
Section 2 and the exercise form attached hereto set forth the totality of the procedures required of the Holder in order to exercise this
Warrant. Without limiting the preceding sentences, no ink-original exercise form shall be required, nor shall any medallion guarantee
(or other type of guarantee or notarization) of any exercise form be required in order to exercise this Warrant. No additional legal opinion,
other information or instructions shall be required of the Holder to exercise this Warrant. The Company shall honor exercises of this
Warrant and shall deliver Warrant Shares underlying this Warrant in accordance with the terms, conditions and time periods set forth herein.
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e) Holder’s Exercise
Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion
of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth
on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group
together with the Holder or any of the Holder’s Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation
(as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and
its Affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination
is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the
Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act
and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation
contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned
by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable shall be in the sole discretion of the
Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable
(in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable,
in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy
of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining
the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in
(A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public
announcement by the Company or (C) a more recent written notice by the Company or the Company’s transfer agent setting forth the
number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days
confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this
Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 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. The Holder, upon notice to the Company,
may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation
in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares
of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any
increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of
this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial
Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
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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. For the purposes of clarification, the Exercise Price of this Warrant will not be adjusted in the event
that the Company or any Subsidiary thereof, as applicable, sells or grants any option to purchase, or sell or grant any right to reprice,
or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock
or Common Stock Equivalents, at an effective price per share less than the Exercise Price then in effect.
b) [RESERVED]
c) 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, 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).
d) Pro Rata Distributions.
During such time as this Warrant is outstanding, if the Company shall declare or make any dividend (other than cash dividends) 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 shares 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,
to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation). To the extent that this Warrant has not been partially or completely exercised at the time of such Distribution, such portion
of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised this Warrant.
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e) Fundamental Transaction.
If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects
any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease,
license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related
transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person)
is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash
or property and has been accepted by the holders of 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 or scheme of arrangement) approved by
the Board of Directors of the Company 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 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 by holders of Common Stock as a result
of such Fundamental Transaction for each share 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 in accordance with the provisions of this Section 3(e) 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 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 with the same effect as if such Successor
Entity had been named as the Company herein.
f) 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.
44
g) 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 mail to the
Holder 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 mailed a notice to the Holder at its last 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, 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 provide such notice or any defect therein shall not affect the validity
of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing
on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer of Warrant.
a) Transferability.
Pursuant to FINRA Rule 5110(e)(1), neither this Warrant nor any Warrant Shares issued upon exercise of this Warrant shall be sold, transferred,
assigned, pledged, or hypothecated, or be the subject of any hedging, short sale, derivative, put, or call transaction that would result
in the effective economic disposition of the securities by any person for a period of 180 days immediately following the Effective Date,
which is also the date of commencement of sales of the offering pursuant to which this Warrant is being issued, except the transfer of
any security:
i. by operation of law or
by reason of reorganization of the Company;
ii. to any FINRA member firm
participating in the offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction
in this Section 4(a) for the remainder of the time period;
iii. if the aggregate amount
of securities of the Company held by the Holder or related person do not exceed 1% of the securities being offered;
iv. that is beneficially
owned on a pro-rata basis by all equity owners of an investment fund, provided that no participating member manages or otherwise directs
investments by the fund, and participating members in the aggregate do not own more than 10% of the equity in the fund; or
v. the exercise or conversion
of any security, if all securities received remain subject to the lock-up restriction in this Section 4(a) for the remainder of the time
period.
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Subject to the foregoing
restriction, any applicable securities laws and the conditions set forth in Section 4(d), 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 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 as of the initial issuance date of this Warrant and shall be identical with
this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register.
The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”),
in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
d) Representation by the
Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof,
will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling
such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to
sales registered or exempted under the Securities Act.
Section 5. Registration of the Registrable
Securities.
5.1 The
Company agrees to keep effective the registration statement and related prospectus pursuant to which the Warrant Shares underlying
the Warrants (collectively, the “Registrable Securities”) were initially issued
until the earlier of the Termination Date and the date on which all Registrable Securities have been sold (the “Registration
Period”). If required, the Company shall prepare and file or cause to be prepared and filed with the Commission a resale registration
statement (the “Resale Registration Statement”) for an offering to be made on a continuous basis pursuant to Rule
415 of the Securities Act registering the resale from time to time by the Holder of all of the Registrable Securities held by the Holder
that have not been previously registered with the Commission. The Resale Registration Statement shall be on Form S-1 or such other appropriate
form permitting registration of such Registrable Securities for resale by the Holder. The Company shall use commercially reasonable efforts
to cause the Resale Registration Statement to be declared effective as soon as possible after filing. Once the Resale Registration Statement
is effective, the Company shall maintain the Resale Registration Statement in accordance with the terms hereof and shall keep the Resale
Registration Statement continuously effective and shall cause the Resale Registration Statement to be supplemented and amended (including
post-effective amendments) to the extent necessary to ensure that such Resale Registration Statement is available or, if not available,
to ensure that another registration statement is available, under the Securities Act at all times until the Registration Period ends.
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The
Resale Registration Statement shall contain a prospectus in such form as to permit the Holder to sell the Registrable Securities pursuant
to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) at any time beginning
on the effective date for such Resale Registration Statement, and shall provide that such Warrant Shares may be sold pursuant to any method
or combination of methods legally available to, and requested by, the Holder. The Company shall bear all fees and expenses attendant
to the registration of the Registrable Securities pursuant to this Section 5.1, but the Holders shall pay any and all underwriting commissions
and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities.
If the Registrable Securities are not registered with the Commission for any reason for a period of thirty (30) consecutive calendar days,
the Holder will be granted customary demand and piggyback registration rights complying with FINRA Rules 5110(g)(8)(C) and (D), respectively.
Section 6. Miscellaneous.
a) No Rights as Stockholder
Until Exercise. 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).
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 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.
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.
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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 Underwriting 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.
g) Nonwaiver and Expenses.
No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, 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 Underwriting 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 and the Holder.
m) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if
any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings
used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
48
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.
ACTUATE THERAPEUTICS, INC.
By:
Name: Daniel M. Schmitt
Title: President and Chief Executive Officer
49
EXHIBIT A
NOTICE OF EXERCISE
TO:
ACTUATE THERAPEUTICS, INC.
(1) The undersigned hereby
elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the
form of (check applicable box):
[ ] in lawful money of the United States;
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 register and 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 or by physical delivery of a certificate to:
(4) Accredited Investor.
If the Warrant is being exercised via cash exercise, the undersigned is an “accredited investor” as defined in Regulation
D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing Entity:
Name of Authorized Signatory:
Title of Authorized Signatory:
Date:
50
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.)
FOR VALUE RECEIVED, [____]
all of or [_______] shares of the foregoing Warrant and all rights evidenced thereby are hereby assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________, _______
Holder’s Signature: _____________________________
Holder’s Address: _____________________________
NOTE: The signature to this Assignment Form must
correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever. Officers
of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the
foregoing Warrant.
51
EXHIBIT D
Form of Lock-Up Agreement
October [•], 2026
Newbridge Securities Corporation
1200 N Federal Hwy, Suite 400
Boca Raton, Florida 33432
Ladies and Gentlemen:
The undersigned understands
that Newbridge Securities Corporation (the “Underwriter”), proposes to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with Actuate Therapeutics, Inc., a Delaware corporation (the “Company”), providing for the public
offering (the “Public Offering”) of shares of common stock, par value $0.000001 per share, of the Company (the “Common
Stock”), and common warrants to purchase shares of Common Stock.
To induce the Underwriter
to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent
of the Underwriter, the undersigned will not, during the period commencing on the date hereof and ending 120 days after the close of the
Public Offering (the “Lock-Up Period”)4,
(1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up
Securities”); (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled
by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration
of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any
transaction, swap, hedge or other arrangement relating to any Lock-Up Securities. Notwithstanding the foregoing, and subject to the conditions
below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Underwriter in connection with (a) transactions
relating to Lock-Up Securities acquired in open market transactions after the completion of the Public Offering; provided that
no filing under Section 13 or Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
or other public announcement shall be required or shall be voluntarily made [in connection with subsequent sales of Lock-Up Securities
acquired in such open market transactions; (b) transfers of Lock-Up Securities as a bona fide gift, by will or intestacy or to
a family member or trust for the benefit of the undersigned or a family member (for purposes of this lock-up agreement, “family
member” means any relationship by blood, marriage or adoption, not more remote than first cousin); (c) transfers of Lock-Up
Securities to a charity or educational institution; (d) if the undersigned is a corporation, partnership, limited liability company or
other business entity, (i) any transfers of Lock-Up Securities to another corporation, partnership or other business entity that controls,
is controlled by or is under common control with the undersigned or (ii) distributions of Lock-Up Securities to members, partners, stockholders,
subsidiaries or affiliates (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned; (e) if
the undersigned is a trust, to a trustee or beneficiary of the trust; provided that in the case of any transfer pursuant to the
foregoing clauses (b), (c), (d) or (e), (i) any such transfer shall not involve a disposition for value, (ii) each transferee shall sign
and deliver to the Underwriter a lock-up agreement substantially in the form of this lock-up agreement and (iii) no filing under Section
13 or Section 16(a) of the Exchange Act or other public announcement shall be required or shall be voluntarily made; (f) the receipt by
the undersigned from the Company of Common Stock upon the vesting of restricted stock awards or stock units or upon the exercise of options
to purchase the Common Stock issued under the Company’s 2024 Stock Incentive Plan or an employment arrangement described in the
Pricing Prospectus (as defined in the Underwriting Agreement) (the “Plan Shares”) or the transfer of shares of Common
Stock or any securities convertible into Common Stock to the Company upon a vesting event of the Company’s securities or upon the
exercise of options to purchase the Company’s securities, in each case on a “cashless” or “net exercise”
basis or to cover tax obligations of the undersigned in connection with such vesting or exercise, but only to the extent such right expires
during the Lock-Up Period, provided that no filing under Section 13 or Section 16(a) of the Exchange Act or other public announcement
shall be required or shall be voluntarily made during the Lock-Up Period, and after Lock-Up Period, if the undersigned is required to
file a report under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common
Stock during the Lock-Up Period, the undersigned shall include a statement in such schedule or report to the effect that the purpose of
such transfer was to cover tax withholding obligations of the undersigned in connection with such vesting or exercise and, provided
further, that the Plan Shares shall be subject to the terms of this lock-up agreement; (g) the transfer of Lock-Up Securities pursuant
to agreements described in the Pricing Prospectus under which the Company has the option to repurchase such securities or a right of first
refusal with respect to the transfer of such securities, provided that if the undersigned is required to file a report under Section
13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Lock-Up Period,
the undersigned shall include a statement in such schedule or report describing the purpose of the transaction; (h) the establishment
of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Lock-Up Securities, provided that (i) such
plan does not provide for the transfer of Lock-Up Securities during the Lock-Up Period and (ii) to the extent a public announcement or
filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding
the establishment of such plan, such public announcement or filing shall include a statement to the effect that no transfer of Lock-Up
Securities may be made under such plan during the Lock-Up Period; (i) the conversion of the outstanding preferred stock of the Company
into Common Stock,]5 (j) the transfer of Lock-Up
Securities that occurs by operation of law, such as pursuant to a qualified domestic relations order or in connection with a divorce settlement,
provided that the transferee agrees to sign and deliver a lock-up agreement substantially in the form of this lock-up agreement
for the balance of the Lock-Up Period, and provided further, that any filing under Section 13 or Section 16(a) of the Exchange
Act that is required to be made during the Lock-Up Period as a result of such transfer shall include a statement that such transfer has
occurred by operation of law; and (k) the transfer of Lock-Up Securities pursuant to a bona fide third party tender offer, merger, consolidation
or other similar transaction made to all holders of the Common Stock involving a change of control (as defined below) of the Company after
the closing of the Public Offering and approved by the Company’s board of directors; provided that in the event that the
tender offer, merger, consolidation or other such transaction is not completed, the Lock-Up Securities owned by the undersigned shall
remain subject to the restrictions contained in this lock-up agreement. For purposes of clause (k) above, “change of control”
shall mean the consummation of any bona fide third party tender offer, merger, amalgamation, consolidation or other similar transaction
the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons,
becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of a majority of total voting power of the voting
stock of the Company. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance with this lock-up agreement.
____________________
4
The Lock-Up Period shall be for a period of two years after the close of the
Public Offering for the Bios Equity Affiliated Funds and the Kairos Venture Affiliated Funds described in Schedule 3 to the Underwriting
Agreement.
5
Bracketed language not included in the form of Lock-Up Agreement to be delivered
by the Bios Equity Affiliated Funds and the Kairos Venture Affiliated Funds.
52
If the undersigned is an
officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally applicable to any issuer-directed
or “friends and family” securities that the undersigned may purchase in the Public Offering; (ii) the Underwriter agrees
that, at least three (3) business days before the effective date of any release or waiver of the foregoing restrictions in connection
with a transfer of Lock-Up Securities, the Underwriter will notify the Company of the impending release or waiver; and (iii) the Company
has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at
least two (2) business days before the effective date of the release or waiver. Any release or waiver granted by the Underwriter hereunder
to any such officer or director shall only be effective two (2) business days after the publication date of such press release. The provisions
of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer of Lock-Up Securities not for consideration
and (b) the transferee has agreed in writing to be bound by the same terms described in this lock-up agreement to the extent and for the
duration that such terms remain in effect at the time of such transfer.
The undersigned understands
that the Company and the Underwriter are relying upon this lock-up agreement in proceeding toward consummation of the Public Offering.
The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
The undersigned understands
that, if the Underwriting Agreement is not executed by November 15, 2026, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder,
then this lock-up agreement shall be void and of no further force or effect.
Whether or not the Public
Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriter.
Very
truly yours,
(Name - Please Print)
(Signature)
(Name of Signatory, in the case of entities - Please Print)
(Title of Signatory, in the case of entities - Please Print)
Address:
53
EXHIBIT E
Form of Press Release
Actuate Therapeutics, Inc.
[Date]
Actuate Therapeutics, Inc. (the “Company”)
announced today that Newbridge Securities Corporation, acting as the sole underwriter in the Company’s recent public offering of
_______ shares of the Company’s common stock, par value $0.000001 per share (the “Common Stock”), and common
warrants to purchase shares of Common Stock, is [waiving] [releasing] a lock-up restriction with respect to _________ shares of Common
Stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on _________,
20___, and the shares may be sold on or after such date.
This press release is not an offer or sale
of the securities in the United States or in any other jurisdiction where such offer or sale is prohibited, and such securities may not
be offered or sold in the United States absent registration or an exemption from registration under the Securities Act of 1933, as amended.
54
EX-4.1 — WARRANT AGENCY AGREEMENT DATED AS OF OCTOBER 28, 2026
EX-4.1
Filename: actuate_ex0401.htm · Sequence: 3
Exhibit 4.1
WARRANT AGENCY AGREEMENT
WARRANT AGENCY AGREEMENT made
as of October 28, 2026 (“Issuance Date”), between Actuate Therapeutics, Inc., a Delaware corporation, with offices at 1751
River Run Ste 400, Fort Worth, Texas 76107 (“Company”), and Broadridge Corporate Issuer Solutions, LLC with offices at 51
Mercedes Way, Edgewood, NY 11717 (“Warrant Agent”).
WHEREAS, the Company is engaged
in a public offering of Units and, in connection therewith, has determined to issue and deliver up to 17,816,892 Warrants (the “Warrants”)
to the public investors, with each such Warrant evidencing the right of the holder thereof to purchase one share of common stock, par
value $0.000001 per share, of the Company's Common Stock (the “Common Stock”) for $0.45, subject to adjustment as described
herein; and
WHEREAS, the Company has filed
with the Securities and Exchange Commission a Registration Statement, No. 333-299332 on Form S-1 (as the same may be amended from time
to time, the “Registration Statement”) for the registration, under the Securities Act of 1933, as amended (the “Act”)
of, among other securities, the Warrants and the Common Stock issuable upon exercise of the Warrants (the “Warrant Shares”),
and such Registration Statement was declared effective on October 26, 2026; and
WHEREAS, the Company desires
the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration,
transfer, exchange and exercise of the Warrants; and
WHEREAS, the Company desires
to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things
have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or
on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution
and delivery of this Warrant Agreement.
NOW, THEREFORE, in consideration of the mutual
agreements herein contained, the parties hereto agree as follows:
1.Appointment
of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant
Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Warrant
Agreement.
1
2.Warrants.
2.1Form
of Warrant. Each Warrant shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the
provisions of which are incorporated herein, and shall be signed by, or bear the facsimile signature of, the Chief Executive Officer,
President, Chief Financial Officer or Treasurer, Secretary or Assistant Secretary of the Company and shall bear a facsimile of the Company’s
seal. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in
which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased
to be such at the date of issuance. All of the Warrants shall initially be represented by one or more book-entry certificates (each a
“Book-Entry Warrant Certificate”). Following their initial issuance, and upon written request to the Warrant Agent, each beneficial
owner shall have the right to request that their Warrant be delivered to them in certificate form.
2.2.Effect
of Countersignature. Unless and until countersigned by the Warrant Agent pursuant to this Warrant Agreement, a Warrant shall be invalid
and of no effect and may not be exercised by the holder thereof.
2.3.Registration.
2.3.1.Warrant
Register. The Warrant Agent shall maintain books (“Warrant Register”), for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants
in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant
Agent by the Company. To the extent the Warrants are DTC eligible as of the Issuance Date, all of the Warrants shall be represented by
one or more Book-Entry Warrant Certificates deposited with the Depository Trust Company (the “Depository”) and registered
in the name of Cede & Co., a nominee of the Depository. Ownership of beneficial interests in the Book-Entry Warrant Certificates shall
be shown on, and the transfer of such ownership shall be effected through, records maintained (i) by the Depository or its nominee for
each Book-Entry Warrant Certificate; (ii) by institutions that have accounts with the Depository (such institution, with respect to a
Warrant in its account, a “Participant”); or (iii) directly on the book-entry records of the Warrant Agent with respect only
to owners of beneficial interests that represent such direct registration.
If the Warrants are not DTC
Eligible as of the Issuance Date or the Depository subsequently ceases to make its book-entry settlement system available for the Warrants,
the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement within ten (10) days after the
Depository ceases to make its book-entry settlement available. In the event that the Company does not make alternative arrangements for
book-entry settlement within ten (10) days or the Warrants are not eligible for, or it is no longer necessary to have the Warrants available
in, book-entry form, the Warrant Agent shall provide written instructions to the Depository to deliver to the Warrant Agent for cancellation
each Book-Entry Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver to the Depository definitive Warrant
Certificates in physical form evidencing such Warrants. Such definitive Warrant Certificates shall be in substantially the form annexed
hereto as Exhibit A.
2
2.3.2.Beneficial
Owner; Registered Holder. The term “beneficial owner” shall mean any person in whose name ownership of a beneficial interest
in the Warrants evidenced by a Book-Entry Warrant Certificate is recorded in the records maintained by the Depository or its nominee.
Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person
in whose name such Warrant shall be registered upon the Warrant Register (“registered holder”), as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate
made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4.Detachability
of Warrants. The securities comprising the units will be issued separately and will be separately transferable immediately upon issuance.
2.5Uncertificated
Warrants. Notwithstanding the foregoing and anything else herein to the contrary, the Warrants may be issued in uncertificated form.
3.Terms
and Exercise of Warrants.
3.1.Exercise
Price. Each Warrant shall, when countersigned by the Warrant Agent, entitle the registered holder thereof, subject to the provisions
of such Warrant and of this Warrant Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the
price of $0.45 per whole share, subject to the subsequent adjustments provided in Section 4 hereof. The term “Exercise Price”
as used in this Warrant Agreement refers to the price per share at which Common Stock may be purchased at the time a Warrant is exercised.
3.2.Duration
of Warrants. A Warrant may be exercised only during the period (“Exercise Period”) commencing on October 28, 2026 and
terminating at 5:00 P.M., New York time on October 28, 2031 (“Expiration Date”). Each Warrant not exercised on or before the
Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease
at the close of business on the Expiration Date.
3.3.Exercise
of Warrants.
3.3.1.Exercise
and Payment. A registered holder may exercise a Warrant by delivering, not later than 5:00 P.M., New York time, on any business day
during the Exercise Period (the “Exercise Date”) to the Warrant Agent at its corporate trust department (i) the Warrant Certificate
evidencing the Warrants to be exercised, or, in the case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the “Book-Entry
Warrants”) shown on the records of the Depository to an account of the Warrant Agent at the Depository designated for such purpose
in writing by the Warrant Agent to the Depository from time to time, (ii) an election to purchase the Warrant Shares underlying the Warrants
to be exercised (“Election to Purchase”), properly completed and executed by the registered holder on the reverse of the Warrant
Certificate or, in the case of a Book-Entry Warrant Certificate, properly delivered by the Participant in accordance with the Depository’s
procedures, and (iii) the Warrant Price for each Warrant to be exercised in lawful money of the United States of America by certified
or official bank check or by bank wire transfer in immediately available funds.
3
If any of (A) the Warrant
Certificate or the Book-Entry Warrants, (B) the Election to Purchase, or (C) the Warrant Price therefor, is received by the Warrant Agent
after 5:00 P.M., New York time, on the specified Exercise Date, the Warrants will be deemed to be received and exercised on the business
day next succeeding the Exercise Date. If the date specified as the Exercise Date is not a business day, the Warrants will be deemed to
be received and exercised on the next succeeding day that is a business day. If the Warrants are received or deemed to be received after
the Expiration Date, the exercise thereof will be null and void and any funds delivered to the Warrant Agent will be returned to the registered
holder or Participant, as the case may be, as soon as practicable. In no event will interest accrue on funds deposited with the Warrant
Agent in respect of an exercise or attempted exercise of Warrants. The validity of any exercise of Warrants will be determined by the
Company in its sole discretion and such determination will be final and binding upon the registered holder or Participant, as applicable,
and the Warrant Agent. Neither the Company nor the Warrant Agent shall have any obligation to inform a registered holder or the Participant,
as applicable, of the invalidity of any exercise of Warrants.
The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in the account of the Company maintained with the Warrant Agent for such purpose
and shall advise the Company via telephone at the end of each day on which funds for the exercise of the Warrants are received of the
amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing.
3.3.2.Issuance
of Certificates. The Warrant Agent shall, by 11:00 A.M. New York time on the business day following the Exercise Date of any Warrant,
advise the Company or the transfer agent and registrar in respect of (a) the Warrant Shares issuable upon such exercise as to the number
of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, (b) the instructions of each registered holder
or Participant, as the case may be, with respect to delivery of the Warrant Shares issuable upon such exercise, and the delivery of definitive
Warrant Certificates, as appropriate, evidencing the balance, if any, of the Warrants remaining after such exercise, (c) in case of a
Book-Entry Warrant Certificate, the notation that shall be made to the records maintained by the Depository, its nominee for each Book-Entry
Warrant Certificate, or a Participant, as appropriate, evidencing the balance, if any, of the Warrants remaining after such exercise and
(d) such other information as the Company or such transfer agent and registrar shall reasonably require.
The Company shall, by 5:00
P.M., New York time, on the third business day next succeeding the Exercise Date of any Warrant and the clearance of the funds in payment
of the Warrant Price, execute, issue and deliver to the Warrant Agent, the Warrant Shares to which such registered holder or Participant,
as the case may be, is entitled, in fully registered form, registered in such name or names as may be directed by such registered holder
or the Participant, as the case may be. Upon receipt of such Warrant Shares, the Warrant Agent shall, by 5:00 P.M., New York time, on
the fifth Business Day next succeeding such Exercise Date, transmit such Warrant Shares to or upon the order of the registered holder
or Participant, as the case may be.
In lieu of delivering physical
certificates representing the Warrant Shares issuable upon exercise, provided the Company’s transfer agent is participating in the
Depository’s Fast Automated Securities Transfer program, the Company shall use its reasonable best efforts to cause its transfer
agent to electronically transmit the Warrant Shares issuable upon exercise to the Depository by crediting the account of the Depository
or of the Participant through its Deposit Withdrawal Agent Commission system. The time periods for delivery described in the immediately
preceding paragraph shall apply to the electronic transmittals described herein.
4
3.3.3.Valid
Issuance. All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Warrant Agreement shall
be validly issued, fully paid and nonassessable.
3.3.4.No
Fractional Exercise. Warrants may be exercised only in whole numbers of Warrant Shares. No fractional Warrant Shares are to be issued
upon the exercise of the Warrant, but rather the number of Warrant Shares to be issued shall be rounded up or down, as applicable, to
the nearest whole number. If fewer than all of the Warrants evidenced by a Warrant Certificate are exercised, a new Warrant Certificate
for the number of unexercised Warrants remaining shall be executed by the Company and countersigned by the Warrant Agent as provided in
Section 2 of this Warrant Agreement, and delivered to the holder of this Warrant Certificate at the address specified on the books of
the Warrant Agent or as otherwise specified by such registered holder. If fewer than all the Warrants evidenced by a Book-Entry Warrant
Certificate are exercised, a notation shall be made to the records maintained by the Depository, its nominee for each Book-Entry Warrant
Certificate, or a Participant, as appropriate, evidencing the balance of the Warrants remaining after such exercise.
3.3.5No
Transfer Taxes. The Company shall not be required to pay any stamp or other tax or governmental charge required to be paid in connection
with any transfer involved in the issue of the Warrant Shares upon the exercise of Warrants; and in the event that any such transfer is
involved, the Company shall not be required to issue or deliver any Warrant Shares until such tax or other charge shall have been paid
or it has been established to the Company’s satisfaction that no such tax or other charge is due.
3.3.6Date
of Issuance. Each person in whose name any such certificate for shares of Common Stock is issued shall for all purposes be deemed
to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Warrant Price was
made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when
the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close
of business on the next succeeding date on which the stock transfer books are open.
3.3.7Cashless
Exercise Under Certain Circumstances.
(i)The
Company shall provide to the registered holder prompt written notice of any time that the Company is unable to issue the Warrant Shares
via DTC transfer or otherwise (without restrictive legend), because (A) the Commission has issued a stop order with respect to the Registration
Statement, (B) the Commission otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily
or permanently, (C) the Company has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently,
or (D) otherwise (each a “Restrictive Legend Event”). To the extent that a Restrictive Legend Event occurs after the registered
holder has exercised a Warrant in accordance with the terms of the Warrants but prior to the delivery of the Warrant Shares, the Company
shall, at the election of the registered holder to be given within five (5) days of receipt of notice of the Restrictive Legend Event,
either (A) rescind the previously submitted Election to Purchase and the Company shall return all consideration paid by registered holder
for such shares upon such rescission or (B) treat the attempted exercise as a cashless exercise as described in the next paragraph and
refund the cash portion of the exercise price to the registered holder.
5
(ii)If
a Restrictive Legend Event has occurred, or the prospectus contained in the Registration Statement is not available for the issuance of
the Warrant Shares to the Holder, then this Warrant may be exercisable on a cashless basis. Notwithstanding anything herein to the contrary,
the Company shall not be required to make any cash payments or net cash settlement to the registered holder in lieu of issuance of the
Warrant Shares. Upon a “cashless exercise”, the Holder shall be entitled to receive a certificate (or book entry) for the
number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = the VWAP on the Business Day immediately preceding the date on which the registered holder elects
to exercise the Warrant by means of a “cashless exercise,” as set forth in the applicable Election to Purchase;
(B) = the Exercise Price of the Warrant, as it may have been adjusted hereunder; and
(X) = the number of Warrant Shares that would be issuable upon exercise of the Warrant in accordance with
the terms of the Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
Upon receipt of an Election to Purchase for a
cashless exercise, the Warrant Agent will promptly deliver a copy of the Election to Purchase to the Company to confirm the number of
Warrant Shares issuable in connection with the cashless exercise. The Company shall calculate and transmit to the Warrant Agent, and the
Warrant Agent shall have no obligation under this section to calculate, the number of Warrant Shares issuable in connection with the cashless
exercise.
“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 NYSE AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (each,
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) the volume weighted average price of the Common Stock for such
date (or the nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on the
OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by OTC Markets, Inc.
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the 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), except to the extent required by applicable law, rule or regulation.
3.3.8Disputes.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company
shall promptly issue to the registered holder the number of Warrant Shares that are not disputed.
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4.Adjustments.
4.1Adjustment
upon Subdivision or Combination of Common Stock. If the Company at any time after the Issuance Date subdivides (by any stock split,
stock dividend, recapitalization, reorganization, scheme, arrangement or otherwise) its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to such subdivision will be proportionately reduced and the number of
Warrant Shares will be proportionately increased. If the Company at any time after the Issuance Date combines (by any stock split, stock
dividend, recapitalization, reorganization, scheme, arrangement or otherwise) its outstanding shares of Common Stock into a smaller number
of shares, the Exercise Price in effect immediately prior to such combination will be proportionately increased and the number of Warrant
Shares will be proportionately decreased. Any adjustment under this Section 4.1 shall become effective at the close of business on the
date the subdivision or combination becomes effective. Company shall promptly notify Warrant Agent of any such adjustment and give specific
instructions to Warrant Agent with respect to any adjustments to the warrant register.
4.2Adjustment
for Other Distributions. In the event the Company shall fix a record date for the making of a dividend or distribution to all holders
of Common Stock of any evidences of indebtedness or assets or subscription rights or warrants (excluding those referred to in Section
4.1 or other dividends paid out of retained earnings), then in each such case the Exercise Price shall be adjusted by multiplying the
Exercise Price in effect immediately prior to the record date fixed for determination of stockholders entitled to receive such distribution
by a fraction of which the denominator shall be the VWAP determined as of the record date mentioned above, and of which the numerator
shall be such VWAP on such record date less the then per share fair market value at such record date of the portion of such assets or
evidence of indebtedness so distributed applicable to one outstanding share of the Common Stock as determined by the Board of Directors
in good faith. In either case the adjustments shall be described in a statement provided to the registered holder of the portion of assets
or evidences of indebtedness so distributed or such subscription rights applicable to one share of Common Stock. Such adjustment shall
be made whenever any such distribution is made and shall become effective immediately after the record date mentioned above.
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4.3.Reclassification,
Consolidation, Purchase, Combination, Sale or Conveyance. If, at any time while the Warrants are outstanding, (i) the Company, directly
or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another person, (ii)
the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or
substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer
or exchange offer (whether by the Company or another person) is completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 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, (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 or scheme of arrangement) with another person whereby such other person 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 a Warrant, the registered 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, the
number of shares of Common Stock, if any, 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.
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 registered 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”) and for which
shareholders received any equity securities of the Successor Entity, to assume in writing all of the obligations of the Company under
this Warrant Agreement in accordance with the provisions of this Section 4.3 pursuant to written agreements and shall, upon the written
request of the registered holder of a Warrant, deliver to the registered holder in exchange for this Warrant created by this Warrant Agreement
a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Warrant which
is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity), if any, plus any
Alternate Consideration, receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for
which the Warrant is exercisable immediately prior to such Fundamental Transaction, and with an exercise price which applies the exercise
price hereunder to such shares of capital stock, if any, plus any Alternate Consideration (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 such Warrant immediately prior to the
consummation of such Fundamental Transaction). 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 Agreement
and the Warrant 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 Agreement and the Warrant with the same
effect as if such Successor Entity had been named as the Company herein.
The Company shall instruct
the Warrant Agent to mail by first class mail, postage prepaid, to each registered holder of a Warrant, written notice of the execution
of any such amendment, supplement or agreement. Any supplemented or amended agreement entered into by the successor corporation or transferee
shall provide for adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 4.
The Warrant Agent shall be under no responsibility to determine the correctness of any provisions contained in such agreement relating
either to the kind or amount of securities or other property receivable upon exercise of warrants or with respect to the method employed
and provided therein for any adjustments and shall be entitled to rely upon the provisions contained in any such agreement. The provisions
of this Section 4.3 shall similarly apply to successive reclassifications, changes, consolidations, mergers, sales and conveyances of
the kind described above.
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4.4Other
Events. If any event occurs of the type contemplated by the provisions of Section 4.1, 4.2 or 4.3 but not expressly provided for by
such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity
features to all holders of Common Stock for no consideration), then the Company's Board of Directors will in good faith make an adjustment
in the Exercise Price and the number of Warrant Shares so as to protect the rights of the registered holder.
4.5.Notices
of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the
Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment
and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth
in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified
in Sections 4.1 or 4.2, then, in any such event, the Company shall give written notice to each registered holder, at the last address
set forth for such holder in the warrant register, of the record date or the effective date of the event. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such event.
4.6.No
Fractional Shares. Notwithstanding any provision contained in this Warrant Agreement to the contrary, the Company shall not issue
fractional shares upon exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant
would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise,
round up or down, as applicable, to the nearest whole number the number of the shares of Common Stock to be issued to the registered holder.
4.7.Form
of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after
such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant
to this Warrant Agreement. However, the Company may at any time in its sole discretion make any change in the form of Warrant that the
Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether
in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
5.Transfer
and Exchange of Warrants.
5.1.Registration
of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register,
upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions
for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant
shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to
time upon request.
5.2.Procedure
for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer
reasonably acceptable to Warrant Agent, duly executed by the registered holder thereof, or by a duly authorized attorney, and thereupon
the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered holder of the Warrants so surrendered,
representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or in any Book-Entry Warrant
Certificate, each Book-Entry Warrant Certificate may be transferred only in whole and only to the Depository, to another nominee of the
Depository, to a successor depository, or to a nominee of a successor depository; provided further, however, that in the event that a
Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in
exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and
indicating whether the new Warrants must also bear a restrictive legend. Upon any such registration of transfer, the Company shall execute,
and the Warrant Agent shall countersign and deliver, in the name of the designated transferee a new Warrant Certificate or Warrant Certificates
of any authorized denomination evidencing in the aggregate a like number of unexercised Warrants.
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5.3.Fractional
Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance
of a Warrant Certificate for a fraction of a Warrant.
5.4.Service
Charges. A service charge shall be made for any exchange or registration of transfer of Warrants, as negotiated between Company and
Warrant Agent.
5.5.Warrant
Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms
of this Warrant Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever
required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
6.Limitations
on Exercise. Neither the Warrant Agent nor the Company shall effect any exercise of any Warrant, and a registered holder shall not
have the right to exercise any portion of a Warrant, to the extent that after giving effect to the issuance of shares of Common Stock
after exercise as set forth on the applicable Election to Purchase, the registered holder (together with such registered holder’s
Affiliates (as defined in Rule 405 under The Securities Act of 1933), and any other persons acting as a group together with the registered
holder or any of the registered holder’s Affiliates), would beneficially own in excess of 4.99% of the Company’s Common Stock
(“Maximum Percentage”). The Holder, upon notice to the Company, may increase or decrease the Maximum Percentage provisions
of this Section 6, provided that the Maximum Percentage in no event exceeds 9.99% of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions
of this Section 6 shall continue to apply. Any increase in the Maximum Percentage will not be effective until the 61st day
after such notice is delivered to the Company. For purposes of the definition of Maximum Percentage, the number of shares of Common Stock
beneficially owned by the registered holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise
of the Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would
be issuable upon exercise of the remaining, nonexercised portion of any Warrant beneficially owned by the registered holder or any of
its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 6, 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
registered holder that neither the Warrant Agent nor the Company is representing to the registered holder that such calculation is in
compliance with Section 13(d) of the Exchange Act and the registered holder is solely responsible for any schedules required to be filed
in accordance therewith. To the extent that the limitation contained in this Section 6 applies, the determination of whether a Warrant
is exercisable (in relation to other securities owned by the registered holder together with any Affiliates) and of which portion of a
Warrant is exercisable shall be in the sole discretion of the registered holder, and the submission of a Election to Purchase shall be
deemed to be the registered holder’s determination of whether such Warrant is exercisable (in relation to other securities owned
by the registered holder together with any Affiliates) and of which portion of a Warrant is exercisable, and neither the Warrant Agent
nor the Company shall have any obligation to verify or confirm the accuracy of such determination and neither of them shall have any liability
for any error made by the registered holder. 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
6, in determining the number of outstanding shares of Common Stock, a registered holder may rely on the number of outstanding shares of
Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission,
as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Company’s
transfer agent setting forth the number of shares of Common Stock outstanding. The provisions of this Section 6 shall be construed and
implemented in a manner otherwise than in strict conformity with the terms of this Section 6 to correct this subsection (or any portion
hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or
supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply
to a successor holder of a Warrant. By written notice to the Company and the Warrant Agent, a registered holder of a Warrant may from
time to time decrease or eliminate the Maximum Percentage to any other percentage; provided that any decrease in the Maximum Percentage
will not be effective until the 61st day after such notice is delivered to the Company and the Warrant Agent shall not negatively affect
any partial exercise effected prior to such change.
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7.Other
Provisions Relating to Rights of Holders of Warrants.
7.1.No
Rights as Stockholder. Except as otherwise specifically provided herein, a registered holder, solely in its capacity as a holder of
a Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose,
nor shall anything contained in this Warrant Agreement be construed to confer upon a registered holder, solely in its capacity as the
registered holder of a Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any
corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise),
receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the registered holder of
the Warrant Shares which it is then entitled to receive upon the due exercise of a Warrant. A Warrant does not entitle the registered
holder thereof to any of the rights of a stockholder.
7.2.Lost,
Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent
may on such terms as to indemnity (including obtaining an open penalty bond protecting the Warrant Agent) or otherwise as they may in
their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute
contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3.Reservation
of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common
Stock that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Warrant Agreement.
8.Concerning
the Warrant Agent and Other Matters.
8.1.Concerning
the Warrant Agent. The Warrant Agent:
8.1.1
shall have no duties or obligations other than those set forth herein and no duties or obligations shall be inferred or implied;
8.1.2
may rely on and shall be held harmless by the Company in acting upon any certificate, statement, instrument, opinion, notice, letter,
facsimile transmission, telegram or other document, or any security delivered to it, and reasonably believed by it to be genuine and to
have been made or signed by the proper party or parties;
8.1.3
may rely on and shall be held harmless by the Company in acting upon written or oral instructions or statements from the Company
with respect to any matter relating to its acting as Warrant Agent;
8.1.4
May consult with counsel satisfactory to it (including counsel for the Company) and shall be held harmless by the Company in relying
on the advice or opinion of such counsel in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance
with such advice or opinion of such counsel;
11
8.1.5
solely shall make the final determination as to whether or not a Warrant received by Warrant Agent is duly, completely and correctly
executed, and Warrant Agent shall be held harmless by the Company in respect of any action taken, suffered or omitted by Warrant Agent
hereunder in good faith and in accordance with its determination;
8.1.6
shall not be obligated to take any legal or other action hereunder which might, in its judgment subject or expose it to any expense
or liability unless it shall have been furnished with an indemnity satisfactory to it; and
8.1.7
shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to the Registration
Statement or this Warrant Agreement, including without limitation obligations under applicable regulation or law.
8.2 Payment of Taxes. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares. The Warrant Agent shall not register any transfer or issue or deliver any Warrant Certificate(s) or Warrant Shares unless or until the persons requesting the registration or issuance shall have paid to the Warrant Agent for the account of the Company the amount of such tax, if any, or shall have established to the reasonable satisfaction of the Company that such tax, if any, has been paid
8.3 Resignation, Consolidation, or Merger of Warrant Agent.
8.3.1.Appointment
of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged
from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office
of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor
Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has
been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with such
notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State
of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant
Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the United States
of America or any state thereof or the District of Columbia, in good standing, which is authorized under such laws to exercise corporate
trust, stock transfer, or shareholder services powers and which has at the time of its appointment as Warrant Agent a combined capital
and surplus of at least $50 million or (b) an affiliate of a legal business entity described in clause (a) of this sentence.
After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations
of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed;
but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of
the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant
Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all
instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers,
rights, immunities, duties, and obligations.
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8.2.2.Notice
of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the
predecessor Warrant Agent and the transfer agent for the Common Stock not later than the effective date of any such appointment.
8.2.3.Merger
or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated
or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant
Agent under this Warrant Agreement without any further act.
8.3.Fees
and Expenses of Warrant Agent.
8.3.1.Remuneration.
The Company agrees to pay the Warrant Agent reasonable remuneration in an amount separately agreed to between Company and Warrant Agent
for its services as Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent
may reasonably incur in the execution of its duties hereunder. The fees must be paid upon execution of this Warrant Agreement, before
any services hereunder commence. An invoice for any out-of-pocket and/or per item fees incurred will be rendered to and payable by the
Company within fifteen (15) days of the date of said invoice. It is understood and agreed that all services to be performed by Warrant
Agent shall cease if full payment for its services has not been received in accordance with the above schedule, and said services will
not commence thereafter until all payment due has been received by Warrant Agent. If Company fails to pay any amounts due under this Warrant
Agreement, Company shall, upon demand by Warrant Agent, pay interest at the rate of 1-1/2% per month (but in no event more than the highest
interest rate allowable by law) on such delinquent amounts from the due date until the date of payment.
8.3.2.Further
Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and
delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing of the provisions of this Warrant Agreement.
8.4.Liability
of Warrant Agent.
8.4.1.Reliance
on Company Statement. Whenever in the performance of its duties under this Warrant Agreement, the Warrant Agent shall deem it necessary
or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact
or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a statement signed by the President of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement
for any action taken or suffered in good faith by it pursuant to the provisions of this Warrant Agreement.
8.4.2.Indemnity.
The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to
indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, claims, losses, damages, costs
and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Warrant Agreement except as a
result of the Warrant Agent’s gross negligence, willful misconduct, or bad faith.
13
8.4.3.Limitation
of Liability.
(i)
Warrant Agent shall not be liable or deemed to be in default for any delay or failure to perform under this Warrant Agreement
or any schedule resulting directly or indirectly from any cause beyond Warrant Agent’s reasonable control, including, without limitation,
natural disasters, and failure of utilities or carriers.
(ii)
Warrant Agent’s aggregate liability for any and all damages arising from or relating to any and all claims and causes
of action not covered by Section 8(a) in connection with the services provided under this Warrant Agreement or any schedule hereto (the
“Services”), shall not exceed the lesser of: (i) the amount of actual damages incurred by Company; and (ii) an amount
equal to the fees (excluding pass-through charges) paid by Company to Warrant Agent with respect to those Services giving rise to such
claim or cause of action during the twelve (12) month period (or such lesser period if those Services have been provided for less than
twelve (12) months) immediately preceding the date of occurrence of the event upon which a claim is asserted, less any amounts previously
paid by Warrant Agent in satisfaction or settlement of other claims applicable to those Services giving rise to such claim or cause of
action, regardless of the basis on which Company is entitled to claim damages (including, without limitation breach, negligence, misrepresentation,
or other contract or tort claim) and shall constitute Company’s sole monetary remedy.
(iii)
Notwithstanding anything in this Warrant Agreement to the contrary, neither party
to this Warrant Agreement shall be liable to the other party for any consequential, indirect, special or incidental damages under any
provision of this Warrant Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act
or failure to act hereunder even if that party has been advised of or has foreseen the possibility of such damages.
(iv)
This Section allocates the risks under this Warrant Agreement between Warrant Agent and Company and is viewed by the parties
as an integral part of the business arrangement between them. The pricing and other terms and conditions of this Warrant Agreement
and any schedule hereto reflect this allocation of risk and the limitations specified herein.
8.4.4Disputes.
In the event any question or dispute arises with respect to the proper interpretation of this Warrant Agreement or the Warrant Agent’s
duties hereunder or the rights of the Company or of any holder of a Warrant, the Warrant Agent shall not be required to act and shall
not be held liable or responsible for refusing to act until the question or dispute has been judicially settled (and the Warrant Agent
may, if it deems it advisable, but shall not be obligated to, file a suit in interpleader or for a declaratory judgment for such purpose)
by final judgment rendered by a court of competent jurisdiction, binding on all parties interested in the matter which is no longer subject
to review or appeal, or settled by a written document in form and substance satisfactory to the Warrant Agent and executed by the Company
and each other interested party. In addition, the Warrant Agent may require for such purpose, but shall not be obligated to require, the
execution of such written settlement by all the Warrant holders, as applicable, and all other parties that may have an interest in the
settlement.
8.4.5Exclusions.
The Warrant Agent shall have no responsibility with respect to the validity of this Warrant Agreement or with respect to the validity
or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant
or condition contained in this Warrant Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under
the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Warrant Agreement or any Warrant or
as to whether any shares of Common Stock will when issued be valid and fully paid and nonassessable.
14
8.5.Acceptance
of Agency. The Warrant Agent hereby accepts the agency established by this Warrant Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised
and concurrently account for, and pay to the Company, all moneys received by the Warrant Agent for the purchase of shares of Common Stock
through the exercise of Warrants.
9.Miscellaneous
Provisions.
9.1.Successors.
All the covenants and provisions of this Warrant Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns.
9.2.Notices.
Any notice, statement or demand authorized by this Warrant Agreement to be given or made by the Warrant Agent or by the holder of any
Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail
or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent) or when delivered, if sent by electronic mail during normal
business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day,
as follows:
Actuate Therapeutics, Inc.
1751 River Run, Ste 400
Fort Worth, Texas 76107
Attn: Paul Lytle, Chief Financial Officer
Email: plytle@actuatetherapeutics.com
Any notice, statement or demand
authorized by this Warrant Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within
five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with
the Company) or when delivered, if sent by electronic mail during normal business hours of the recipient,
and if not sent during normal business hours, then on the recipient’s next business day, as follows:
Broadridge Corporate Issuer Solutions, Inc.,
51 Mercedes Way
Edgewood, NY
11717
Attn: Corporate Actions Department
Email: BCISERM@broadridge.com
With a copy to:
Broadridge Financial Solutions, Inc.
2 Gateway Center
Newark, New Jersey 07102,
and a copy via email to legalnotices@broadridge.com
in each case, Attention: General Counsel
15
9.3.Applicable
law. The validity, interpretation, and performance of this Warrant Agreement and of the Warrants shall be governed in all respects
by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the
substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Warrant Agreement shall be brought and enforced in the courts of the State of New York or the United States
District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenience forum. Any such
process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the Company in any action, proceeding or claim.
9.4.Persons
Having Rights under this Warrant Agreement. Nothing in this Warrant Agreement expressed and nothing that may be implied from any of
the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties
hereto and the registered holders of the Warrants and, for purposes of Sections 3.3, 9.3 and 9.8, the Underwriter, any right, remedy,
or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. The Underwriters
shall be deemed to be an express third-party beneficiary of this Warrant Agreement with respect to Sections 3.3, 9.3 and 9.8 hereof. All
covenants, conditions, stipulations, promises, and agreements contained in this Warrant Agreement shall be for the sole and exclusive
benefit of the parties hereto (and the Underwriters with respect to the Sections 3.3, 9.3 and 9.8 hereof) and their successors and assigns
and of the registered holders of the Warrants.
9.5.Examination
of the Warrant Agreement. A copy of this Warrant Agreement shall be available at all reasonable times at the office of the Warrant
Agent in the city of Edgewood, State of New York, for inspection by the registered holder of any Warrant. The Warrant Agent may require
any such holder to submit his Warrant for inspection by it.
9.6.Counterparts.
This Warrant Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7.Effect
of Headings. The Section headings herein are for convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
9.8Amendments.
This Warrant Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions
with respect to matters or questions arising under this Warrant Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments, including any amendment
to increase the Warrant Price or shorten the Exercise Period, shall require the written consent of the Underwriter and the registered
holders of a majority of the then outstanding Warrants.
9.9
Severability. This Warrant Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Warrant Agreement or of any other term or provision hereof. Furthermore,
in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this
Warrant Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
16
9.10
Force Majeure. In the event either party is unable to perform its obligations under the terms of this Warrant Agreement
because of acts of God, strikes, natural disasters failure of carrier or utilities, equipment or transmission failure or damage that is
reasonably beyond its control, or any other cause that is reasonably beyond its control, such party shall not be liable for damages to
the other for any damages resulting from such failure to perform or otherwise from such causes. Performance under this Warrant Agreement
shall resume when the affected party or parties are able to perform substantially that party’s duties.
9.11
Severability. If any provision of this Warrant Agreement shall be held invalid, unlawful, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.
9.12
Confidentiality. Warrant Agent and the Company agree that all books, records, information and data pertaining to
the business of the other party which are exchanged or received pursuant to the negotiation or the carrying out of this Warrant Agreement,
including the fees for services set forth in the attached schedule, shall remain confidential and shall not be voluntarily disclosed to
any third party (except the party’s attorneys, subcontractors, vendors, representatives, agents, advisors and affiliates), except
with the written approval of the other party or as may be required by law or regulatory authority.
9.13
Survival. The applicable provisions of Sections 8 and 9 shall survive any termination of this Warrant Agreement.
9.14
Merger of Agreement. This Warrant Agreement constitutes the entire agreement between the parties hereto and supersedes
any prior agreement with respect to the subject matter hereof whether oral or written; provided, however, that nothing herein
contained shall amend, replace or supersede any agreement between the Company and Warrant Agent to act as the Company’s transfer
agent which agreement shall remain in full force and effect.
9.15
GDPR and Territorial Limitation.
9.15.1
To the extent Warrant Agent processes Personal Information that would constitute EU Personal Data as defined under Regulation (EU)
2016/679 (General Data Protection Regulation), Warrant Agent will comply with the provisions of the Warrant Agent GDPR Annex, found at
https://www.broadridge.com/GDPR-Annex by using password
ICS54903.
9.15.2
The Services are intended for use in the United States. Except with respect to representations pertaining to the EU Personal
Data as defined under Regulation (EU) 2016/679 (General Data Protection Regulation) in Section 9.15.1 Warrant Agent makes no representation
that the Services are appropriate or available for use outside the United States, and access to the Services from territories where the
Services are illegal is prohibited. Company is responsible for compliance with all local laws in connection with its use of the
Services.
17
IN WITNESS WHEREOF, this Warrant Agreement has
been duly executed by the parties hereto as of the day and year first above written.
ACTUATE THERAPEUTICS, INC.
By: /s/ Daniel M.
Schmitt_________________
Name: Daniel M. Schmitt
Title: President and Chief Executive Officer
Broadridge Corporate
Issuer Solutions, LLC
By: /s/ John P.
Dunn______________________
Name: John P. Dunn
Title: SVP
18
Exhibit A
COMMON STOCK PURCHASE WARRANT
ACTUATE
THERAPEUTICS, INC.
Warrant Shares: _______
Initial Exercise Date: _______, 2026
THIS 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 on or prior to 5:00 p.m. (New York City time) on five year anniversary
of the Initial Exercise Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from Actuate
Therapeutics, Inc., a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder,
the “Warrant Shares”) of 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). This Warrant shall initially be issued and maintained in the form of a security
held in book-entry form and the Depository Trust Company or its nominee (“DTC”) shall initially be the sole registered
holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of
the Warrant Agency Agreement, in which case this sentence shall not apply.
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms, which may not be specifically capitalized, have the meanings
indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“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.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.000001 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.
19
“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.
“Registration Statement”
means the Company’s registration statement on Form S-1 (File No. 333-299332).
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB
or OTCQX (or any successors to any of the foregoing).
“Transfer Agent”
means Broadridge Corporate Issuer Solutions, LLC. the current transfer agent of the Company, with a mailing address of 51 Mercedes Way,
Edgewood, NY 11717 and any successor transfer agent of the Company.
“Underwriting Agreement”
means the underwriting agreement, dated as of _________, 2026 between the Company and Newbridge Securities Corporation, as the underwriter,
as amended, modified or supplemented from time to time in accordance with its terms.
“Warrant Agency Agreement”
means that certain warrant agency agreement, dated on or about the Initial Exercise Date, between the Company and the Warrant Agent.
“Warrant Agent”
means the Transfer Agent and any successor warrant agent of the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Underwriting Agreement.
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Section 2. Exercise.
(a) Exercise of Warrant.
Exercise of this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before
the Termination Date by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of
Exercise in the form annexed hereto (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and
(ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(c)(i) herein) following the date of
exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise
by wire transfer or cashier’s check drawn on a United States. No ink-original Notice of Exercise shall be required. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall
surrender this Warrant to the Company for cancellation within two (2) 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) Business
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.
Notwithstanding the foregoing
in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this Warrant held
in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect exercises made
pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate instruction form
for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation, as applicable),
subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant Agency Agreement,
in which case this sentence shall not apply.
(b) Exercise Price.
The exercise price per share of Common Stock under this Warrant shall be ____ [__% of the common share offering price], subject to adjustment
hereunder (the “Exercise Price”).
(c) Cashless Exercise.
If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained therein is not
available for the issuance or resale of the Warrant Shares to or by the Holder, then this Warrant may also be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = the VWAP on the Business Day immediately preceding the date on which the registered Holder delivers
to the Warrant Agent a completed and executed Election to Purchase by which the Holder elects to exercise the Warrant by means of a “cashless
exercise,” as set forth in the applicable Election to Purchase;
(B) = the Exercise Price of the Warrant, as it may have been adjusted hereunder; and
(X) = the number of Warrant Shares that would be issuable upon exercise of the Warrant in accordance with
the terms of the Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
Upon receipt of an Election to Purchase for a
cashless exercise, the Warrant Agent will promptly deliver a copy of the Election to Purchase to the Company to confirm the number of
Warrant Shares issuable in connection with the cashless exercise. The Company shall calculate and transmit to the Warrant Agent, and the
Warrant Agent shall have no obligation under this section to calculate, the number of Warrant Shares issuable in connection with the cashless
exercise.
21
“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 NYSE AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (each,
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) the volume weighted average price of the Common Stock for such
date (or the nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on the
OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by OTC Markets, Inc.
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
(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 there
is an effective registration statement permitting the issuance by the Company of the Warrant Shares to the Warrant Holder without any
securities law restrictions on resale, and otherwise by book-entry statement in the name of the Holder or its designee, for the number
of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise
by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1)
Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard
Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price is received within the earlier of (i) two (2) Trading Days and (ii) the number of
Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason
to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay
to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based
on the Exercise Price 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. Notwithstanding anything herein to the contrary, the Company shall not
be responsible for the payment of liquidated damages resulting from the failure to issue or deliver Warrant Shares if such failure is
caused solely by any action or inaction of the Holder. 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.
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, 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.
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iii. 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(c)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date (other than any such failure that is solely due to
any action or inaction by the Holder with respect to such exercise), and if after such date the Holder is required by its broker to purchase
(in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver
in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”),
then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number
of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price
at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the
portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall
be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely
complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases 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.
iv. 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.
v. 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.
vi. 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.
vii. Maintenance of Commission
Registration and Blue Sky. At all times during which the Warrants are outstanding and the Company may be obligated to issue Warrant
Shares upon exercise of the Warrants, the Company will maintain an effective registration statement permitting the issuance by the Company
of the Warrant Shares to the Holder without any federal or state securities law restrictions on resale of the Warrant Shares.
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(e) Holders Exercise
Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion
of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth
on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group
together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially
own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares
of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common
Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares
of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by
the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion
of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on
conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in
accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder
that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the
Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained
in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion
of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant
is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which
portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation
to verify or confirm the accuracy of such determination. 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 and the Company
shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of this Warrant
that are not in compliance with the Beneficial Ownership Limitation (other than to the extent that information on the number of outstanding
shares of Common Stock of the Company is provided by the Company and relied upon by the Holders). For purposes of this Section 2(e), in
determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as
reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent
public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of
shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Day confirm
orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares
of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant,
by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was
reported. The “Beneficial Ownership Limitation” shall be 4.99% 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. The Holder, upon notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly
give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
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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) 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 other than any Subsidiary or any Affiliate of the Company, whereby
the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of
the voting power of the surviving entity immediately after such merger or consolidation; (ii) the Company (and all of its Subsidiaries,
taken as a whole), 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, 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. 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.
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 in accordance with the provisions of
this Section 3(b) 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 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 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
with the same effect as if such Successor Entity had been named as the Company herein.
25
(c) 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.
(d) Notice to Holder.
i. Adjustment to
Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver
to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant
Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow
Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock,
(B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize
the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class
or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the
Common Stock, any consolidation or merger to which the Company (and all of its Subsidiaries, taken as a whole) 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 email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least ten (10) calendar days prior to the applicable record or
effective date hereinafter specified, a notice (unless such information is filed with the Commission, in which case a notice shall not
be required) stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights
or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such
dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders
of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice
or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the
Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
(e) Voluntary Adjustment
By Company. Subject to the rules and regulations of the Trading Market on which any of its securities are traded and as applicable,
provided that there is a current and effective registration statement permitting the issuance by the Company of the Warrant Shares to
the Warrant Holder without any securities law restrictions on resale, the Company may at any time during the term of this Warrant, reduce
the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
26
Section 4. Transfer
of Warrant.
(a) Transferability.
Subject to compliance with any applicable securities laws, 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.
If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations
in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to
any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges
shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares
issuable pursuant thereto.
(c) Warrant Register.
The Warrant Agent shall register this Warrant, upon records to be maintained by the Warrant Agent for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent 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. Redemption
of Warrants. This Warrant shall not be redeemable by the Company.
Section 6. 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(c)(i), except as expressly set forth in Section 3.
In no event shall the Company be required to net cash settle an exercise of this Warrant.
(b) Loss, Theft, Destruction
or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting
of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver
a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
27
(c) Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
(d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock
a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of 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 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 this Warrant will, upon exercise of this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized,
validly issued, fully paid and non-assessable 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 non-assessable 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) Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated
by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members,
employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in
such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
28
(f) Restrictions.
Notwithstanding the obligation of the Company pursuant to Section 2(c)(vii), if upon an exercise of the Warrants the Warrant Shares
cannot be delivered by the Company because of a federal or state securities law legal limitation without restriction of any kind imposed
on the Warrant Shares, but the Company is able to deliver the Warrant Shares subject to restriction, then the Holder, at its option acknowledged
in a writing from the Holder, may accept the delivery of the Warrant Shares subject to restriction, and in such case, the Holder acknowledges
that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state
and federal securities laws. For an abundance of clarity, this Section 6(f) is not intended to permit the Company to not fulfill its obligations
under Section 2(c)(vii). Any failure to fulfill its obligations under Section 2(c)(vii) will be deemed a material default of this
Warrant, and the Company will be liable to the Holder for any, loss, including but not limited to any loss of profit, suffered by the
Holder for its inability to exercise the Warrant and obtain the Warrant Shares or for its acceptance of the Warrant Shares with restrictions.
Acceptance of the Warrant Shares with restrictions will not constitute a waiver by the Holder to claiming damages.
(g) Nonwaiver and Expenses.
No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if the Company
willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company
shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable
attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto
or in otherwise enforcing any of its rights, powers or remedies hereunder.
(h) Notices. Any
and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally, by e-mail: plytle@actuatetherapeutics.com,
or sent by a nationally recognized overnight courier service, addressed to the Company, at Actuate Therapeutics, Inc., 1751 River Run,
Ste 400, Fort Worth, Texas 76107 Attn: Paul Lytle, Chief Financial Officer, or such other physical address, email address or address as
the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be provided
by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier
service addressed to each Holder at the physical address, e-mail address or address of such Holder appearing on the books of the Company.
Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission,
if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City
time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at
the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading
Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or the
fifth Trading Day following the date of mailing, if sent by the United States Postal Service, postage prepaid, or (iv) upon actual receipt
by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material,
non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K.
(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.
29
(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 and the provisions hereof may be waived with the written consent of the Company and holders of a majority
of the then outstanding Warrants (based on the number of Warrant Shares then underlying such Warrants).
(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.
(o) Warrant Agency Agreement.
If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued subject to the Warrant Agency
Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant Agency Agreement, the provisions
of this Warrant shall govern and be controlling.
********************
(Signature Page Follows)
30
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.
ACTUATE THERAPEUTICS, INC.
By:
Name:
Title:
THIS WARRANT IS NOT VALID FOR ANY
PURPOSE UNLESS COUNTERSIGNED BY THE WARRANT AGENT BELOW.
BROADRIDGE CORPORATE ISSUER SOLUTIONS, LLC
By:
Name:
Title:
[Signature Page to Warrant]
31
NOTICE OF EXERCISE
TO: ACTUATE THERAPEUTICS, INC.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the
form of (check applicable box):
[ ] in lawful money of the United States; 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: ______________________________
32
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name:
(Please Print)
Address:
(Please Print)
Phone Number:
Email Address:
Dated: _______________ __, ______
Holder’s Signature:
Holder’s Address:
33
EX-5.1 — OPINION OF GREENBERG TRAURIG, LLP
EX-5.1
Filename: actuate_ex0501.htm · Sequence: 4
Exhibit
5.1
GREENBERG TRAURIG, LLP
18565 Jamboree Road, Suite 500
Irvine, CA 92612
October 28, 2026
Actuate Therapeutics, Inc.
1751
River Run, Suite 400
Fort Worth, TX 76107
Re: Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel to
Actuate Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on
Form S-1 (SEC File No. 333-299332) (the “Registration
Statement”) filed by the Company with the Securities and Exchange Commission (“Commission”) under the Securities
Act of 1933, as amended, for the registration of (i) up to 35,633,785 shares (the “Shares”) of the Company’s
common stock (“Common Stock”); (ii) warrants to purchase up to 17,816,892 shares of Common Stock (the “Common
Warrants”), each exercisable for one share of Common Stock (each, a “Common Warrant Share” and collectively,
the “Common Warrant Shares”); and (iii) a warrant to purchase up to 1,247,182 shares of Common Stock to be issued to
the underwriter (the “Underwriter’s Warrant”), each exercisable for one share of Common Stock (each, an “Underwriter’s
Warrant Share” and collectively, the “Underwriter’s Warrant Shares”).
You have requested our opinion
as to the matters set forth below in connection with the Registration Statement. For purposes of rendering this opinion, we have examined
the Registration Statement, forms of the Sixth Amended and Restated Certificate of Incorporation of the Company, Amended and Restated
Bylaws of the Company currently in effect, the Underwriting Agreement, dated October 26, 2026, by and between the Company and Newbridge
Securities Corporation (the “Underwriting Agreement”), the Warrant Agency Agreement, dated October 28, 2026, by and
between the Company and Broadridge Corporate Issuer Solutions, LLC, as warrant agent (the “Warrant Agency Agreement”),
the form of Common Warrant, the form of Underwriter’s Warrant, and the corporate action of the Company that provides for the issuance
of the Shares, the Common Warrants and the Underwriter’s Warrant and the execution of the Underwriting Agreement and the Warrant
Agency Agreement, and we have made such other investigation as we have deemed appropriate. We have examined and relied upon certificates
of public officials and, as to certain matters of fact that are material to our opinion, we have also relied on a certificate of an officer
of the Company. We have not independently verified the matters set forth in such certificates.
1
We express no opinion herein
as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware, the laws of the State of
New York and the federal laws of the United States of America.
Based upon and subject to
the foregoing, it is our opinion that:
(i) The Shares, when issued against payment therefor, will be validly issued, fully paid and non-assessable shares of Common Stock of
the Company;
(ii) The Common Warrants, when issued against payment therefor, will constitute the legal, valid and binding obligations of the Company;
(iii) The Common Warrant Shares have been duly authorized by all necessary corporate action on the part of the Company and, when issued,
sold and delivered by the Company pursuant to the Common Warrants against payment therefor, will be validly issued, fully paid and non-assessable
shares of Common Stock of the Company;
(iv) The Underwriter’s Warrant, when issued against payment therefor, will constitute the legal, valid and binding obligation of
the Company; and
(v) The Underwriter’s Warrant Shares have been duly authorized by all necessary corporate action on the part of the Company and,
when issued, sold and delivered by the Company pursuant to the Underwriter’s Warrant against payment therefor, will be validly issued,
fully paid and non-assessable shares of Common Stock of the Company.
We hereby consent to the filing
of this opinion as an exhibit to the Form 8-K and to the reference to our name under the caption “Legal Matters” in the prospectus
made part of the Registration Statement.
Very truly yours,
/s/ GREENBERG TRAURIG, LLP
2
EX-99.1 — PRESS RELEASE DATED OCTOBER 27, 2026
EX-99.1
Filename: actuate_ex9901.htm · Sequence: 5
Exhibit 99.1
Actuate Therapeutics
Announces Pricing of $11.0 Million
Underwritten
Public Offering
CHICAGO, IL and FORT WORTH, TX, October 27, 2026
— Actuate Therapeutics, Inc. (NASDAQ: ACTU) (“Actuate” or the “Company”), a clinical-stage biopharmaceutical
company focused on developing novel therapies for difficult-to-treat cancers, today announced the pricing of an underwritten public offering
of 30,985,900 shares of its common stock and warrants to purchase up to an aggregate of 15,492,950 shares of its common stock. The public
offering price for each set of two shares of common stock and one accompanying warrant (each, a “Warrant” and collectively,
the “Warrants”) to purchase one share of common stock is $0.71 per set of securities (the “Offering”). The Warrants
are being sold at the rate of one Warrant for every two shares of common stock. The Warrants will have an exercise price of $0.45 per
share, are exercisable immediately upon issuance and will expire five years following the date of issuance. The shares of common stock
and Warrants will be issued separately but can only be purchased together in the Offering.
In addition, the Company has granted the underwriter
a 45-day option to purchase up to 4,647,885 additional shares of its common stock and additional Warrants to purchase up to 2,323,942
shares of common stock, at the underwriter’s discretion, at the public offering price per share of common stock or Warrant, less
underwriting discounts and commissions.
The Offering is expected to close on October 28,
2026, subject to the satisfaction of customary closing conditions.
Newbridge Securities Corporation is acting as
sole book-running manager for the Offering. The Black River Management LTD Branch Office of Newbridge Securities Corporation was responsible
for sourcing and executing the Offering.
The gross proceeds to the Company from the Offering
are expected to be approximately $11.0 million, before deducting underwriting discounts and commissions and estimated offering expenses
payable by the Company. The potential additional gross proceeds from the Warrants, if fully exercised on a cash basis, will be approximately
$7.0 million. No assurance can be given that any of the Warrants will be exercised. The Company intends to use the net proceeds from the
Offering for working capital and general corporate purposes.
The shares of common stock and Warrants described
above are being offered by the Company pursuant to an effective registration statement on Form S-1, as amended (File No. 333-299332),
filed with and subsequently declared effective by the Securities and Exchange Commission (the “SEC”). A preliminary prospectus
relating to the Offering has been filed with the SEC and is available on the SEC’s website at http://www.sec.gov. The Offering is
being made only by means of a prospectus that forms part of the effective registration statement. A final prospectus describing the terms
of the Offering will be filed with the SEC. Copies of the final prospectus relating to the Offering, when available, may be obtained from
Newbridge Securities Corporation, at 1200
North Federal Highway, Suite 400, Boca Raton, FL 33432, Attention: Syndicate, Email: syndicate@newbridgesecurities.com.
This press release shall not constitute an offer
to sell or a solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such
offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
1
About Actuate Therapeutics, Inc.
Actuate Therapeutics, Inc. is a clinical-stage
biopharmaceutical company focused on developing therapies for the treatment of high-impact, difficult-to-treat cancers. Actuate’s
lead investigational drug, elraglusib (a novel GSK-3β inhibitor), targets molecular pathways in cancer that are involved in
promoting tumor growth and resistance to conventional cancer drugs such as chemotherapy through the inhibition of nuclear factor kappa-light-chain-enhancer
of activated B cells (NF-κB) and DNA Damage Response (DDR). Elraglusib may also mediate anti-tumor immunity through the regulation
of multiple immune checkpoints and immune cell function.
Forward-Looking Statements
This press release contains forward-looking statements
under the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995, including statements regarding Actuate’s
expectations on the timing and completion of the Offering, the potential exercise by the underwriter of its option to purchase additional
securities and the anticipated use of proceeds therefrom. Forward-looking statements involve known and unknown risks, uncertainties and
other factors that could cause actual results to differ materially, including those risks disclosed under the caption “Risk Factors”
in the prospectus related to the Offering. These forward-looking statements speak only as of the date hereof. Actuate does not undertake
and specifically disclaims any obligation to update or revise such statements to reflect new circumstances or unanticipated events as
they occur, except as required by law.
Investor Contact
Mike Moyer
Managing Director
LifeSci Advisors, LLC
mmoyer@lifesciadvisors.com
Media Contact
Ignacio Guerrero-Ros, Ph.D.
Russo Partners, LLC
ignacio.guerrero-ros@russopartnersllc.com
(858) 717-2310
2
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