8-K
OS Therapies Inc (OSTX)
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): March 31, 2026
OS THERAPIES INCORPORATED
(Exact name of registrant as specified in its charter)
| Delaware | 001-42195 | 82-5118368 |
|---|---|---|
| (State<br> or other jurisdiction<br><br> of incorporation) | (Commission<br> File Number) | (IRS<br> Employer<br><br> Identification No.) |
| 115 Pullman Crossing Road, Suite 103<br><br> Grasonville, Maryland | 21638 | |
| --- | --- | |
| (Address<br> of Principal Executive Offices) | (Zip<br> Code) |
Registrant’s
telephone number, including area code: (410) 297-7793
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 (see General Instruction A.2. below):
| ☐ | Written communications<br> pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant<br> to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| --- | --- |
| ☐ | Pre-commencement communications<br> pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| --- | --- |
| ☐ | Pre-commencement communications<br> pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| --- | --- |
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class | Trading Symbol(s) | Name of Each Exchange on Which Registered |
|---|---|---|
| Common Stock, par value $0.001 per share | OSTX | NYSE American |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
CURRENT
REPORT ON FORM 8-K
OS
Therapies Incorporated
March
31, 2026
Item1.01. Entry into a Material Definitive Agreement.
SecuritiesPurchase Agreement
On March 31, 2026, OS Therapies Incorporated (the “Company”) entered into a securities purchase agreement (the “Purchase Agreement”) with the purchasers identified on the signature pages thereto (the “Purchasers”), pursuant to which the Company offered for sale to the Purchasers in a registered direct offering (the “Offering”) an aggregate of 2,505,073 shares of its common stock and, in lieu thereof, pre-funded warrants to purchase up to 1,250,893 shares of its common stock (the “pre-funded warrants”), and accompanying warrants to purchase up to 3,755,966 shares of its common stock (the “common warrants”). The shares of common stock, pre-funded warrants and common warrants (including the shares of common stock underlying the pre-funded warrants and common warrants) were offered by the Company pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-289443) filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) on August 8, 2025 and declared effective by the Commission on August 12, 2025 (the “Registration Statement”), and the prospectus supplement dated March 31, 2026 filed by the Company with the Commission on April 2, 2026 (the “Prospectus Supplement”).
The combined purchase price for each share and common warrant in the Offering was $1.40, and the purchase price for each pre-funded warrant and common warrant in the Offering was $1.399, which is equal to the per share and common warrant purchase price, minus $0.001. The closing of the Offering occurred on April 2, 2026. The Company received net proceeds from the Offering of approximately $4.7 million. The Company intends to use the net proceeds to fund clinical development activities, including ongoing and planned clinical trials, advance its research and development programs, and acquire or invest in technologies, product candidates or businesses that are complementary to its strategic objectives, as well as for working capital and other general corporate purposes.
The Purchase Agreement contains customary representations, warranties and agreements by the Company, indemnification obligations of the Company and the Purchasers, including for liabilities arising under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions.
Pursuant to the Purchase Agreement, the Company agreed not to issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of common stock or any securities convertible into or exercisable or exchangeable for shares of common stock or file any registration statement or prospectus, or any amendment or supplement thereto, for 90 days after the closing date of the Offering, subject to certain exceptions. The Company also agreed not to effect or enter into an agreement to effect any issuance of common stock or any securities convertible into or exercisable or exchangeable for shares of common stock involving a Variable Rate Transaction (as defined in the Purchase Agreement) until 180 days after the closing date of the Offering.
PlacementAgent Agreement
In connection with the Offering, on March 31, 2026, the Company entered into a placement agency agreement (the “Placement Agent Agreement”) with Ceros Financial Services, Inc. (the “Placement Agent”), pursuant to which the Placement Agent agreed to act as the Company’s exclusive placement agent in connection with the Offering. The Company agreed to pay the Placement Agent a cash fee equal to 7.0% of the gross proceeds raised in the Offering. The Company also agreed to reimburse the Placement Agent up to $70,000 for its reasonable and documented out-of-pocket accountable expenses and up to $20,000 for its non-accountable expenses.
The Company also issued to the Placement Agent, or its designees, warrants (the “placement agent warrants”) to purchase up to 187,798 shares of the Company’s common stock (equal to 5.0% of the aggregate number of shares of common stock and pre-funded warrants sold in the Offering). The placement agent warrants have an exercise price of $1.54 per share (which represents 110% of the offering price per share and accompanying common warrant), are exercisable beginning six months after the date of issuance and expire five years from April 2, 2026.
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In addition to the shares of common stock, the pre-funded warrants and the common warrants (including the shares of common stock underlying the pre-funded warrants and common warrants), the placement agent warrants and the shares of common stock underlying the placement agent warrants were offered by the Company pursuant to the Registration Statement and the Prospectus Supplement.
The Placement Agent Agreement contains customary representations, warranties, and agreements by the Company, indemnification obligations of the Company, other obligations of the parties and termination provisions.
Termsof the Pre-Funded Warrants
The following summary of certain terms and provisions of the pre-funded warrants is not complete and is subject to, and qualified in its entirety by, the provisions of the pre-funded warrants, the form of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and incorporated herein by reference.
Duration and ExercisePrice. Each pre-funded warrant is exercisable at any time beginning on the date of issuance and expires only when fully exercised. Each pre-funded warrant entitles the holder thereof to purchase shares of the Company’s common stock at an exercise price equal to $0.001 per share. The exercise price and number of shares of the Company’s common stock issuable upon exercise of each pre-funded warrant is subject to adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting the Company’s common stock and the exercise price.
Exercisability. The holder of the pre-funded warrant may exercise the pre-funded warrant by delivering an exercise notice, completed and duly signed, and payment in cash of the exercise price for the number of shares of the Company’s common stock for which the pre-funded warrant is being exercised. The holder of the pre-funded warrant may also satisfy its obligation to pay the exercise price through a “cashless exercise,” in which the holder receives the net value of the pre-funded warrant in shares of common stock determined according to the formula set forth in the pre-funded warrant.
A holder of the pre-funded warrant will not be entitled to exercise any portion of such pre-funded warrant that, upon giving effect to such exercise, would cause the aggregate number of shares of the Company’s common stock beneficially owned by such holder (together with its affiliates and any other persons whose beneficial ownership of common stock would be aggregated with the holder for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) to exceed 4.99% (or, at the holder’s election, 9.99%) of the total number of then issued and outstanding shares of the Company’s common stock, as such percentage ownership is determined in accordance with the terms of the pre-funded warrant and subject to such holder’s rights under the pre-funded warrant to increase or decrease such percentage to any other percentage not in excess of 19.99% upon at least 61 days’ prior notice from such holder to the Company.
FundamentalTransaction. In the event of any fundamental transaction, as described in the pre-funded warrants and generally including any merger with or into another entity, sale of all or substantially all of the Company’s assets, tender offer or exchange offer, or reclassification of the Company’s shares of common stock, then upon any subsequent exercise of a pre-funded warrant, the holder will have the right to receive as alternative consideration, for each share of common stock that would have been issuable upon such exercise immediately prior to the occurrence of such fundamental transaction, the number of shares of common stock of the successor or acquiring corporation of the Company, if it is the surviving corporation, and any additional consideration receivable upon or as a result of such transaction by a holder of the number of shares of common stock for which the warrant is exercisable immediately prior to such event.
Transferability. Subject to applicable laws, a pre-funded warrant may be transferred at the option of the holder upon surrender of the pre-funded warrant to the Company together with the appropriate instruments of transfer and payment of funds sufficient to pay any transfer taxes (if applicable).
ExchangeListing. There is no established public trading market available for the pre-funded warrants on any securities exchange or nationally recognized trading system. The Company does not intend to list the pre-funded warrants on the NYSE American or any other securities exchange or nationally recognized trading system.
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The Company will initially serve as the warrant agent for the pre-funded warrants.
Rightas a Stockholder*.* Except as otherwise provided in the pre-funded warrants or by virtue of such holder’s ownership of shares of the Company’s common stock, the holders of the pre-funded warrants do not have the rights or privileges of holders of the Company’s common stock, including any voting rights, until they exercise their pre-funded warrants.
Termsof the Common Warrants
The following summary of certain terms and provisions of the common warrants is not complete and is subject to, and qualified in its entirety by, the provisions of the common warrants, the form of which is filed as Exhibit 4.2 to this Current Report on Form 8-K and incorporated herein by reference.
Duration and ExercisePrice. Each common warrant is immediately exercisable upon issuance and expires five years from the date of issuance. Each common warrant entitles the holder thereof to purchase shares of the Company’s common stock at an exercise price equal to $1.40 per share. The exercise price and number of shares of the Company’s common stock issuable upon exercise of each common warrant is subject to adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting the Company’s common stock and the exercise price.
***Exercisability.***The holder of the common warrant may exercise the common warrant by delivering an exercise notice, completed and duly signed, and payment in cash of the exercise price for the number of shares of the Company’s common stock for which the common warrant is being exercised. The holder of the common warrant may also satisfy its obligation to pay the exercise price through a “cashless exercise,” in which the holder receives the net value of the common warrant in shares of common stock determined according to the formula set forth in the common warrant.
A holder of the common warrant will not be entitled to exercise any portion of such common warrant that, upon giving effect to such exercise, would cause the aggregate number of shares of the Company’s common stock beneficially owned by such holder (together with its affiliates and any other persons whose beneficial ownership of common stock would be aggregated with the holder for purposes of Section 13(d) of the Exchange Act) to exceed 4.99% (or, at the holder’s election, 9.99%) of the total number of then issued and outstanding shares of the Company’s common stock, as such percentage ownership is determined in accordance with the terms of the common warrant and subject to such holder’s rights under the common warrant to increase or decrease such percentage to any other percentage not in excess of 19.99% upon at least 61 days’ prior notice from such holder to the Company.
FundamentalTransactions. In the event of any fundamental transaction, as described in the common warrants and generally including any merger with or into another entity, sale of all or substantially all of the Company’s assets, tender offer or exchange offer, or reclassification of the Company’s shares of common stock, then upon any subsequent exercise of a common warrant, the holder will have the right to receive as alternative consideration, for each share of common stock that would have been issuable upon such exercise immediately prior to the occurrence of such fundamental transaction, the number of shares of common stock of the successor or acquiring corporation of the Company, if it is the surviving corporation, and any additional consideration receivable upon or as a result of such transaction by a holder of the number of shares of common stock for which the warrant is exercisable immediately prior to such event.
***Transferability.***Subject to applicable laws, a common warrant may be transferred at the option of the holder upon surrender of the common warrant to the Company together with the appropriate instruments of transfer and payment of funds sufficient to pay any transfer taxes (if applicable).
ExchangeListing. There is no established public trading market available for the common warrants on any securities exchange or nationally recognized trading system. The Company does not intend to list the common warrants on the NYSE American or any other securities exchange or nationally recognized trading system.
The Company will initially serve as the warrant agent for the common warrants.
Rightas a Stockholder. Except as otherwise provided in the common warrants or by virtue of such holder’s ownership of shares of the Company’s common stock, the holders of the common warrants do not have the rights or privileges of holders of the Company’s common stock, including any voting rights, until they exercise their common warrants.
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The foregoing descriptions of the Placement Agent Agreement, the pre-funded warrants, the common warrants, the placement agent warrants and the Purchase Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Placement Agent Agreement and the forms of pre-funded warrant, common warrant, placement agent warrant and Purchase Agreement, copies of which are filed as Exhibits 1.1, 4.1, 4.2, 4.3 and 10.1, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
The representations, warranties and covenants contained in the Purchase Agreement and the Placement Agent Agreement were made only for purposes of each such agreement and as of specific dates, were solely for the benefit of the parties thereto and may be subject to limitations agreed upon by the contracting parties. Accordingly, the Purchase Agreement and the Placement Agent Agreement are incorporated herein by reference only to provide investors with information regarding the terms of the Purchase Agreement and the Placement Agent Agreement and not to provide investors with any other factual information regarding the Company or its business, and should be read in conjunction with the disclosures in the Company’s periodic reports and other filings with the Commission.
The legal opinion, including the related consent, of Olshan Frome Wolosky LLP relating to the issuance and sale of the Company’s securities in the Offering is filed as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on Form 8-K does not constitute an offer to sell, or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or jurisdiction.
Item 8.01. Other Events.
On April 2, 2026, the Company issued a press release announcing the closing of the Offering, a copy of which is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Forward-LookingStatements
This Current Report on Form 8-K, including Exhibit 99.1 hereto, contains forward-looking statements that involve risks and uncertainties, such as statements related to the intended use of the net proceeds from the Offering. The risks and uncertainties involved include the Company’s financial position, market conditions and other risks detailed from time to time in the Company’s periodic reports and other filings with the Commission. You are cautioned not to place undue reliance on forward-looking statements, which are based on the Company’s current expectations and assumptions and speak only as of the date of this Current Report on Form 8-K. The Company does not intend to revise or update any forward-looking statement in this Current Report on Form 8-K as a result of new information, future events or otherwise, except as required by U.S. federal securities law.
Item9.01. Financial Statements and Exhibits.
(d)Exhibits.
| Exhibit<br><br> Number | Description |
|---|---|
| 1.1 | Placement Agency Agreement, dated as of March 31, 2026, by and between OS Therapies Incorporated and Ceros Financial Services, Inc. |
| 4.1 | Form of Pre-Funded Warrant. |
| 4.2 | Form of Common Warrant. |
| 4.3 | Form of Placement Agent Warrant. |
| 5.1 | Opinion of Olshan Frome Wolosky LLP. |
| 10.1* | Form of Securities Purchase Agreement. |
| 23.1 | Consent of Olshan Frome Wolosky LLP (included in Exhibit 5.1). |
| 99.1 | Press Release issued by OS Therapies Incorporated on April 2, 2026. |
| 104 | Cover Page Interactive Data File (embedded within the<br> Inline XBRL document). |
| * | Pursuant<br> to Item 601(a)(5) of Regulation S-K, certain schedules and exhibits have been<br> omitted. The registrant agrees to furnish supplementally a copy of any omitted schedule or<br> exhibit to the Commission upon its request. |
| --- | --- |
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SIGNATURE
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.
| OS THERAPIES INCORPORATED | |||
|---|---|---|---|
| Dated: April 2, 2026 | By: | /s/<br> Paul A. Romness, MPH | |
| Name: | Paul A. Romness, MPH | ||
| Title: | President and Chief Executive Officer |
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Exhibit1.1
CerosFinancial Services, Inc.
1445 Research Boulevard
Rockville, MD 20850
March 31, 2026
OS Therapies Incorporated
Attn: Paul A. Romness, MPH, President and Chief Executive Officer
115 Pullman Crossing Road, Suite #103
Grasonville, Maryland 21638
Ladies and Gentlemen:
This letter (the “Agreement”) constitutes the agreement between Ceros Financial Services, Inc. (the “PlacementAgent”) and OS Therapies Incorporated, a Delaware corporation (the “Company”), that the Placement Agent shall serve as the exclusive placement agent for the Company, on a reasonable “best efforts” basis, in connection with the proposed placement (the “Placement”) of (i) shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), (ii) pre-funded warrants to purchase shares of Common Stock (the “Pre-Funded Warrants”), and (iii) common warrants to purchase shares of Common Stock (the “Common Warrants” and, collectively with the Pre-Funded Warrants, the “Warrants” and, together with the Shares, the “Securities”). The Securities actually placed by the Placement Agent are referred to herein as the “Placement Agent Securities.” The Placement Agent Securities shall be offered and sold pursuant to an effective registration statement on Form S-3 (File No. 333-289443) (the “Registration Statement”) under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”). The terms of the Placement shall be mutually agreed upon by the Company and the purchasers (each, a “Purchaser” and collectively, the “Purchasers”), and nothing herein constitutes that the Placement Agent would have the power or authority to bind the Company or any Purchaser, or an obligation for the Company to issue any securities or complete the Placement. The Company expressly acknowledges and agrees that the Placement Agent’s obligations hereunder are on a reasonable best efforts basis only and that the execution of this Agreement does not constitute a commitment by the Placement Agent to purchase the Securities and does not ensure the successful placement of the Securities or any portion thereof or the success of the Placement Agent with respect to securing any other financing on behalf of the Company. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with the Placement; provided, however, that the Company shall first approve any such sub-agents. Certain affiliates of the Placement Agent may participate in the Placement by purchasing some of the Placement Agent Securities. The sale of Placement Agent Securities to the Purchasers will be evidenced by a securities purchase agreement (the “Purchase Agreement”) between the Company and such Purchasers, in a form reasonably acceptable to the Company and the Purchasers. Capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Purchase Agreement. Prior to the signing of any Purchase Agreement, officers of the Company will be available to answer inquiries from the prospective Purchasers.
| 1. | Representations<br> and Warranties of the Company; Covenants of the Company. |
|---|---|
| A. | Representations<br> of the Company. With respect to the Placement Agent Securities, each of the representations<br> and warranties (together with any related disclosure schedules thereto) and covenants made<br> by the Company to the Purchasers in the Purchase Agreement in connection with the Placement,<br> are hereby incorporated herein by reference into this Agreement (as though fully restated<br> herein) and is, as of the date of this Agreement and as of the date of the sale of the Placement<br> Agent Securities (the “Closing Date”), hereby made to, and in favor of,<br> the Placement Agent and shall be deemed to have been made directly to the Placement Agent<br> as if set forth herein in full, mutatis mutandis, and the Placement Agent shall be<br> entitled to rely thereon to the same extent as the Purchasers. The Company has full right,<br> power and authority to enter into this Agreement and to perform its obligations hereunder.<br> The execution, delivery and performance of this Agreement and the consummation of the transactions<br> contemplated hereby do not and will not conflict with or result in a breach of any agreement<br> to which the Company is a party, including any agreement with any other placement agent,<br> underwriter or financial advisor. In addition to the foregoing, the Company represents and<br> warrants that there are no affiliations with any Financial Industry Regulatory Authority<br> (“FINRA”) member firm among the Company’s officers, directors or,<br> to the knowledge of the Company, any five percent (5.0%) or greater securityholder of the<br> Company, except as set forth in the Purchase Agreement. |
| --- | --- |
| B. | Covenants<br> of the Company. The Company covenants and agrees to continue to retain (i) an independent<br> public accounting firm registered with the Public Company Accounting Oversight Board (the<br> “PCAOB”) for a period of at least three (3) years after the Closing Date<br> for so long as the Company has securities registered under the Exchange Act, and (ii) a competent<br> transfer agent with respect to the Placement Agent Securities for a period of three (3) years<br> after the Closing Date for so long as the Company has securities registered under the Exchange<br> Act. In addition, from the date hereof until ninety (90) days after the Closing Date, subject<br> to certain exceptions provided for in the Purchase Agreement, neither the Company nor any<br> Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed<br> issuance of any shares of Common Stock or Common Stock Equivalents, except that such restriction<br> shall not apply with respect to an Exempt Issuance. From the date hereof until one hundred<br> and eighty (180) days following the Closing Date, the Company shall be prohibited from effecting<br> or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries<br> of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving<br> a Variable Rate Transaction, except that such restriction shall not apply with respect to<br> an Exempt Issuance, and further provided that the issuance of shares of Common Stock in an<br> “at-the-market” offering shall not be deemed a Variable Rate Transaction after<br> thirty (30) days after the Closing Date. |
| --- | --- |
| 2. | Representations<br> of the Placement Agent. The Placement Agent represents and warrants that it (i) is<br> a member in good standing of FINRA, (ii) is registered as a broker/dealer under the<br> Exchange Act and the securities laws of each state in which an offer or sale of Placement<br> Securities is made (unless exempt from the respective state’s broker-dealer registration<br> requirements), (iii) is licensed as a broker/dealer under the laws of the United States<br> of America, applicable to the offers and sales of the Placement Agent Securities by the Placement<br> Agent, (iv) is and will be a corporate body validly existing under the laws of its place<br> of incorporation, and (v) has full power and authority to enter into and perform its<br> obligations under this Agreement. The Placement Agent will immediately notify the Company<br> in writing of any change in its status with respect to subsections (i) through (v) above.<br> The Placement Agent covenants that it will use its reasonable best efforts to conduct the<br> Placement hereunder in compliance with the provisions of this Agreement and the requirements<br> of applicable law. |
| --- | --- |
| 3. | Compensation. |
| --- | --- |
| A. | In<br> consideration of the services to be provided for hereunder, the Company shall pay to the<br> Placement Agent and/or its respective designees a cash fee of 7.00% of the aggregate gross<br> proceeds raised from the sale of the Placement Agent Securities (the “Cash Fee”).<br> The Cash Fee shall be paid on the Closing Date. The Company shall not be required to pay<br> the Placement Agent any fees or expenses except for the Cash Fee and the reimbursement of<br> (i) accountable legal fees and other reasonable and documented out-of-pocket expenses incurred<br> by the Placement Agent in connection with the transaction in the amount of up to $70,000<br> and (ii) non-accountable expenses equal to $20,000. As additional compensation for services<br> rendered, on the Closing Date, the Company shall issue to the Placement Agent or its designees<br> such number of common stock purchase warrants to purchase shares of Common Stock equal to<br> 5.0% of the aggregate number of shares of Common Stock and Pre-Funded Warrants sold in the<br> Offering (the “Placement Agent Warrants”). The PA Warrants shall have<br> the same terms as the Common Warrants sold to the investors in the Offering except that the<br> exercise price shall be 110% of the per Share price of the Common Stock sold to the investors<br> in the Offering, shall be exercisable six months from the issue date and shall provide for<br> a cashless exercise provision which will be available regardless of the existence of a registration<br> statement and customary anti-dilution provisions (for stock dividends and splits and recapitalizations). |
| --- | --- |
| B. | The<br> Placement Agent reserves the right to reduce any item of compensation or adjust the terms<br> thereof as specified herein in the event that a determination shall be made by FINRA to the<br> effect that the Placement Agent’s aggregate compensation is in excess of FINRA Rules<br> or that the terms thereof require adjustment. |
| --- | --- |
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| C. | The<br> Company agrees to pay all costs, fees and expenses incurred by the Company in connection<br> with the performance of its obligations hereunder and in connection with the transactions<br> contemplated hereby, including, without limitation: (i) all expenses incident to the issuance,<br> delivery and qualification of the Placement Agent Securities; (ii) all fees and expenses<br> of the registrar and transfer agent of the Securities; (iii) all necessary issue, transfer<br> and other stamp taxes in connection with the issuance and sale of the Placement Agent Securities;<br> (iv) all fees and expenses of the Company’s counsel, independent public or registered<br> public accountants and other advisors; (v) all filing fees, reasonable attorneys’ fees<br> and expenses incurred by the Company in connection with qualifying or registering (or obtaining<br> exemptions from the qualification or registration of) all or any part of the Placement Agent<br> Securities for offer and sale under the state securities or blue sky laws or the securities<br> laws of any other country; and (vi) the fees and expenses associated with including the Placement<br> Agent Securities on the Trading Market. |
|---|---|
| 4. | Indemnification. |
| --- | --- |
| A. | To<br> the extent permitted by law, with respect to the Placement Agent Securities, the Company<br> will indemnify the Placement Agent and its affiliates, directors, officers, employees, members<br> and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20<br> of the Exchange Act) against all losses, claims, damages, expenses and liabilities, as the<br> same are incurred (including the reasonable fees and expenses of counsel), relating to or<br> arising out of its activities hereunder or pursuant to this Agreement, except to the extent<br> that any losses, claims, damages, expenses or liabilities (or actions in respect thereof)<br> are found in a final judgment (not subject to appeal) by a court of law to have resulted<br> primarily and directly from the Placement Agent’s fraud, willful misconduct or gross<br> negligence in performing the services described herein or violation of law. |
| --- | --- |
| B. | Promptly<br> after receipt by the Placement Agent of notice of any claim or the commencement of any action<br> or proceeding with respect to which the Placement Agent is entitled to indemnity hereunder,<br> the Placement Agent will notify the Company in writing of such claim or of the commencement<br> of such action or proceeding, but failure to so notify the Company shall not relieve the<br> Company from any obligation it may have hereunder, except and only to the extent such failure<br> results in the forfeiture by the Company of substantial rights and defenses or materially<br> adversely impacts the Company. If the Company so elects or is requested by the Placement<br> Agent, the Company will assume the defense of such action or proceeding and will employ counsel<br> reasonably satisfactory to the Placement Agent and will pay the reasonable actual and documented<br> fees and expenses of such counsel. Notwithstanding the preceding sentence, the Placement<br> Agent will be entitled to employ counsel separate from counsel for the Company and from any<br> other party in such action if counsel for the Placement Agent reasonably determines that<br> it would be inappropriate under the applicable rules of professional responsibility for the<br> same counsel to represent both the Company and the Placement Agent. In such event, the reasonable<br> fees and disbursements of no more than one (1) such separate counsel will be paid by the<br> Company, in addition to fees of local counsel. The Company will have the right to settle,<br> compromise, or consent to the entry of judgment in any pending or threatened the claim, action<br> or proceeding provided that the Company will not settle any such claim, action or proceeding<br> without the prior written consent of the Placement Agent, which will not be unreasonably<br> withheld, conditioned, or delayed, unless such settlement includes an unconditional release<br> of the Placement Agent and each other indemnitee named in such proceeding from all liabilities<br> arising out of the action for such claim, action or proceeding. The Company shall not be<br> liable for any settlement of any action effected without its written consent, which will<br> not be unreasonably withheld, conditioned or delayed. |
| --- | --- |
| C. | The<br> Company agrees to notify the Placement Agent promptly of the assertion against it or any<br> other person of any claim or the commencement of any action or proceeding relating to a transaction<br> contemplated by this Agreement. |
| --- | --- |
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| D. | If<br> for any reason the foregoing indemnity is unavailable to the Placement Agent or insufficient<br> to hold the Placement Agent harmless, then the Company shall contribute to the amount paid<br> or payable by the Placement Agent as a result of such losses, claims, damages or liabilities<br> in such proportion as is appropriate to reflect not only the relative benefits received by<br> the Company on the one hand and the Placement Agent on the other, but also the relative fault<br> of the Company on the one hand and the Placement Agent on the other that resulted in such<br> losses, claims, damages or liabilities, as well as any relevant equitable considerations.<br> The amounts paid or payable by a party in respect of losses, claims, damages and liabilities<br> referred to above shall be deemed to include any legal or other fees and expenses incurred<br> in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions<br> hereof, the Placement Agent’s share of the liability hereunder shall not be in excess<br> of the amount of fees actually received by the Placement Agent under this Agreement. |
|---|---|
| E. | These<br> indemnification provisions shall remain in full force and effect whether or not the transaction<br> contemplated by this Agreement is completed and shall survive the termination of this Agreement,<br> and shall be in addition to any liability that the Company might otherwise have to any indemnified<br> party under this Agreement or otherwise. |
| --- | --- |
| 5. | Engagement<br> Term. |
| --- | --- |
| A. | The<br> Placement Agent’s engagement hereunder will commence on the date hereof and continue<br> through the Closing Date or, if earlier, April 17, 2026. The date of termination of this<br> Agreement is referred to herein as the “Termination Date.” In the event,<br> however, in the course of the Placement Agent’s performance of due diligence it deems<br> it necessary to terminate the engagement, the Placement Agent may do so prior to the Termination<br> Date. The Company may elect to terminate the engagement hereunder for any reason prior to<br> the Termination Date but will remain responsible for fees and expenses pursuant to Section 3<br> hereof and fees and expenses with respect to the Placement Agent Securities, if sold in the<br> Placement. Notwithstanding anything to the contrary contained herein, the provisions concerning<br> the Company’s obligation to pay any fees or expenses actually earned pursuant to Section<br> 3 hereof and the provisions concerning confidentiality, indemnification, contribution and<br> governing law contained herein will survive any expiration or termination of this Agreement.<br> If this Agreement is terminated prior to the completion of the Placement, the Company shall<br> reimburse expenses incurred by the Placement Agent as set forth herein but in no event greater<br> than the amounts set forth herein, on or before the Termination Date. The Placement Agent<br> agrees not to use any confidential information concerning the Company provided to the Placement<br> Agent by the Company for any purposes other than those contemplated under this Agreement. |
| --- | --- |
| 6. | Placement<br> Agent Information. The Company agrees that any information or advice rendered by the<br> Placement Agent in connection with this engagement is for the confidential use of the Company<br> only in its evaluation of the Placement and, except as otherwise required by law, the Company<br> will not disclose or otherwise refer to the advice or information in any manner without the<br> Placement Agent’s prior written consent. |
| --- | --- |
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| 7. | No<br> Fiduciary Relationship. This Agreement does not create, and shall not be construed as<br> creating rights enforceable by any person or entity not a party hereto, except those entitled<br> hereto by virtue of the indemnification provisions hereof. The Company acknowledges and agrees<br> that the Placement Agent is not and shall not be construed as a fiduciary of the Company<br> and shall have no duties or liabilities to the equity holders or the creditors of the Company<br> or any other person by virtue of this Agreement or the retention of the Placement Agent hereunder,<br> all of which are hereby expressly waived. |
|---|---|
| 8. | Closing.<br> The obligations of the Placement Agent, and the closing of the sale of the Placement Agent<br> Securities hereunder are subject to the accuracy, when made and on the Closing Date, of the<br> representations and warranties on the part of the Company contained herein and in the Purchase<br> Agreement, to the performance by the Company of its obligations hereunder and in the Purchase<br> Agreement, and to each of the following additional terms and conditions, except as otherwise<br> disclosed to and acknowledged and waived by the Placement Agent: |
| --- | --- |
| A. | All<br> corporate proceedings and other legal matters incident to the authorization, form, execution,<br> delivery and validity of each of this Agreement, the Placement Agent Securities, and all<br> other legal matters relating to this Agreement and the transactions contemplated hereby with<br> respect to the Placement Agent Securities shall be reasonably satisfactory in all material<br> respects to the Placement Agent. |
| --- | --- |
| B. | The<br> Placement Agent shall have received from outside counsel to the Company such counsel’s<br> written opinion with respect to the Placement Agent Securities, addressed to the Placement<br> Agent and dated as of the Closing Date, in form and substance reasonably satisfactory to<br> the Placement Agent. |
| --- | --- |
| C. | The<br> Placement Agent shall have received customary certificates of the Company’s executive<br> officers, as to the accuracy of the representations and warranties contained in the Purchase<br> Agreement, and a certificate of the Company’s secretary certifying that each of the<br> Company’s charter documents are true and complete, have not been modified and are in<br> full force and effect; (ii) that the resolutions of the Company’s Board of Directors<br> relating to the Placement are in full force and effect and have not been modified; and (iii)<br> as to the incumbency of the officers of the Company. |
| --- | --- |
| D. | The<br> Common Stock shall be registered under the Exchange Act in accordance with the terms of the<br> Purchase Agreement and, as of the Closing Date, the Company shall apply for the Shares and<br> the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants and the Common<br> Warrants to be listed and admitted and authorized for trading on the NYSE American or other<br> applicable U.S. national exchange and satisfactory evidence of such application shall have<br> been provided to the Placement Agent. The Company shall have taken no action designed to,<br> or likely to have the effect of terminating the registration of the Common Stock under the<br> Exchange Act or delisting or suspending from trading the Common Stock from the NYSE American<br> or other applicable U.S. national exchange, nor has the Company received any information<br> suggesting that the Commission or the NYSE American or other U.S. applicable national exchange<br> is contemplating terminating such registration or listing. |
| --- | --- |
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| E. | No<br> action shall have been taken and no statute, rule, regulation or order shall have been enacted,<br> adopted or issued by any governmental agency or body which would, as of the Closing Date,<br> prevent the issuance or sale of the Placement Agent Securities or materially and adversely<br> affect the business or operations of the Company; and no injunction, restraining order or<br> order of any other nature by any federal or state court of competent jurisdiction shall have<br> been issued as of the Closing Date which would prevent the issuance or sale of the Placement<br> Agent Securities or materially and adversely affect the business or operations of the Company. |
|---|---|
| F. | The<br> Company shall have entered into a Purchase Agreement with the Purchasers of the Placement<br> Agent Securities and such agreement shall be in full force and effect and shall contain representations,<br> warranties and covenants of the Company as agreed upon between the Company and the Purchasers. |
| --- | --- |
| G. | FINRA<br> shall have raised no objection to the fairness and reasonableness of the terms and arrangements<br> of this Agreement. In addition, the Company shall, if requested by the Placement Agent, make<br> or authorize Placement Agent’s counsel to make on the Company’s behalf, any necessary<br> filing with the FINRA Corporate Financing Department with respect to the Placement and pay<br> all filing fees required in connection therewith. |
| --- | --- |
If any of the conditions specified in this Section 8 shall not have been fulfilled when and as required by this Agreement, all obligations of the Placement Agent hereunder may be cancelled by the Placement Agent at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
| 9. | Governing<br> Law. This Agreement will be governed by, and construed in accordance with, the laws of<br> the State of New York applicable to agreements made and to be performed entirely in such<br> State, without regard to its conflict of laws principles. This Agreement may not be assigned<br> by either party without the prior written consent of the other party. This Agreement shall<br> be binding upon and inure to the benefit of the parties hereto, and their respective successors<br> and permitted assigns. Any right to trial by jury with respect to any dispute arising under<br> this Agreement or any transaction or conduct in connection herewith is waived. Any dispute<br> arising under this Agreement may be brought into the courts of the State of New York or into<br> the Federal Court located in New York, New York and, by execution and delivery of this Agreement,<br> the Company hereby accepts for itself and in respect of its property, generally and unconditionally,<br> the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal<br> service of process and consents to process being served in any such suit, action or proceeding<br> by delivering a copy thereof via overnight delivery (with evidence of delivery) to such party<br> at the address in effect for notices to it under this Agreement and agrees that such service<br> shall constitute good and sufficient service of process and notice thereof. Nothing contained<br> herein shall be deemed to limit in any way any right to serve process in any manner permitted<br> by law. If either party shall commence an action or proceeding to enforce any provisions<br> of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed<br> by the other party for its attorney’s fees and other costs and expenses incurred with<br> the investigation, preparation and prosecution of such action or proceeding. |
|---|
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| 10. | Entire<br> Agreement/Miscellaneous. This Agreement embodies the entire agreement and understanding<br> between the parties hereto, and supersedes all prior agreements and understandings, relating<br> to the subject matter hereof. If any provision of this Agreement is determined to be invalid<br> or unenforceable in any respect, such determination will not affect such provision in any<br> other respect or any other provision of this Agreement, which will remain in full force and<br> effect. This Agreement may not be amended or otherwise modified or waived except by an instrument<br> in writing signed by both the Placement Agent and the Company. The representations, warranties,<br> agreements and covenants contained herein shall survive the Closing Dates of the Placement<br> and delivery of the Placement Agent Securities. This Agreement may be executed in two or<br> more counterparts, all of which when taken together shall be considered one and the same<br> agreement and shall become effective when counterparts have been signed by each party and<br> delivered to the other party, it being understood that both parties need not sign the same<br> counterpart. In the event that any signature is delivered by facsimile transmission or a<br> .pdf format file, such signature shall create a valid and binding obligation of the party<br> executing (or on whose behalf such signature is executed) with the same force and effect<br> as if such facsimile or .pdf signature page were an original thereof. |
|---|---|
| 11. | Notices.<br> Any and all notices or other communications or deliveries required or permitted to be provided<br> hereunder shall be in writing and shall be deemed given and effective on the earliest of<br> (a) the date of transmission, if such notice or communication is sent to the email address<br> specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time)<br> on a business day, (b) the next business day after the date of transmission, if such notice<br> or communication is sent to the email address on the signature pages attached hereto on a<br> day that is not a business day or later than 6:30 p.m. (New York City time) on any business<br> day, (c) the third business day following the date of mailing, if sent by U.S. internationally<br> recognized air courier service, or (d) upon actual receipt by the party to whom such notice<br> is required to be given. The address for such notices and communications shall be as set<br> forth on the signature pages hereto. |
| --- | --- |
| 12. | Press<br> Announcements. The Company agrees that the Placement Agent shall, on and after the Closing<br> Date, have the right to reference the Placement and the Placement Agent’s role in connection<br> therewith in the Placement Agent’s marketing materials and on its website and to place<br> advertisements in financial and other newspapers and journals, in each case at its own expense<br> and in compliance with all applicable securities laws and applicable confidentiality provisions. |
| --- | --- |
[Theremainder of this page has been intentionally left blank.]
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Please confirm that the foregoing correctly sets forth our agreement by signing and returning to the Placement Agent the enclosed copy of this Agreement.
| Very<br> truly yours, | |
|---|---|
| Ceros Financial Services, inc. | |
| By: | /s/<br> Mark Goldwasser |
| Name: | Mark<br> Goldwasser |
| Title: | Chief<br> Executive Officer |
| Address<br> for notice:<br><br> <br><br><br> <br>1445<br> Research Boulevard<br><br> Rockville, Maryland 20850<br><br> Attn: Mark Goldwasser<br><br> Email: goldie@cerosfs.com | |
| --- |
Accepted and agreed to as of
the date first written above:
| OS Therapies Incorporated | |
|---|---|
| By: | /s/<br> Paul A. Romness, MPH |
| Name: | Paul<br> A. Romness, MPH |
| Title: | President<br> and Chief Executive Officer |
Address for notice:
OS Therapies Incorporated
Attn: Paul A. Romness, MPH, President and Chief Executive Officer
115 Pullman Crossing Road, Suite #103
Grasonville, Maryland 21638
Email: par@ostherapies.com
[SignaturePage to Placement Agency Agreement.]
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Exhibit 4.1
PRE-FUNDED COMMON STOCK PURCHASEWARRANT
OS TherapiesIncorporated
| Warrant Shares: __________ | Issue Date: __________, 2026 |
|---|
THIS PRE-FUNDED COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, __________ or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination Date”) but not thereafter, to subscribe for and purchase from OS Therapies Incorporated, 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).
Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement (the “Purchase Agreement”), dated March 31, 2026, among the Company and the purchasers signatory thereto.
Section 2. Exercise.
| a) | Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in<br>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<br>Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto as<br>Exhibit A (the “Notice of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number<br>of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid,<br>the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer<br>or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is<br>specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee<br>(or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the<br>Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares<br>available hereunder and this Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company<br>for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial<br>exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the<br>effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant<br>Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such<br>purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. TheHolder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, followingthe purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any giventime may be less than the amount stated on the face hereof. | |
|---|---|---|
| b) | Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price<br>of $0.001 per Warrant Share, was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration<br>(other than the nominal exercise price of $0.001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect<br>any exercise of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate<br>exercise price under any circumstance or for any reason whatsoever. The remaining unpaid exercise price per share of Common Stock under<br>this Warrant shall be $0.001, subject to adjustment hereunder (the “Exercise Price”). | |
| --- | --- | |
| c) | Cashless Exercise. If at the time of exercise hereof there is no effective registration statement<br>registering, or the prospectus contained therein is not available for the issuance or resale of the Warrant Shares to or by the Holder,<br>then this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the<br>Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where: | |
| --- | --- | |
| (A) | = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(68) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| --- | --- | --- |
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| (B) | = | the Exercise Price of this Warrant, as adjusted hereunder;<br>and |
|---|---|---|
| (X) | = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary to this Section 2(c).
| d) | Mechanics of Exercise. |
|---|
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the 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”), provided that the aggregate Exercise Price is received by the Company on the Warrant Share Delivery Date (other than in connection with a cashless exercise). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third (3^rd^) Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 9:00 a.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
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iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including reasonable and customary 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 this 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 this 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 down to the lesser whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
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vii. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
| e) | Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant,<br>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<br>after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s<br>Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution<br>Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the<br>foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall<br>include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being<br>made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised<br>portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion<br>of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock<br>Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the<br>Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e),<br>beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated<br>thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance<br>with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.<br>To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable<br>(in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this<br>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<br>the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together<br>with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial<br>Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have<br>no liability for exercise of this Warrant that are not in compliance with the Beneficial Ownership Limitation (other than in connection<br>with information provided in connection with clause (C) below). In addition, a determination as to any group status as contemplated above<br>shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes<br>of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding<br>shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the<br>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<br>setting forth the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within one (1)<br>Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number<br>of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company,<br>including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares<br>of Common Stock was reported. The “Beneficial Ownership Limitation” shall be [4.99/9.99]% of the number of shares of<br>the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this<br>Warrant. The Holder, upon written notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this<br>Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock<br>outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder<br>and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective<br>until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented<br>in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof)<br>which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements<br>necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor<br>holder of this Warrant. |
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6
Section 3. Certain Adjustments.
| a) | Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays<br>a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent<br>securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the<br>Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines<br>(including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification<br>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<br>a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately<br>before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event,<br>and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price<br>of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after<br>the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately<br>after the effective date in the case of a subdivision, combination or re-classification. |
|---|---|
| b) | Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above,<br>if at any time while this Warrant is outstanding, the Company grants, issues or sells any Common Stock Equivalents or rights to purchase<br>stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase<br>Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase<br>Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise<br>of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)<br>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<br>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<br>Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase<br>Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in<br>such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such<br>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<br>would not result in the Holder exceeding the Beneficial Ownership Limitation). |
| --- | --- |
| c) | Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare<br>or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way<br>of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options<br>by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),<br>at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution<br>to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable<br>upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial<br>Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the<br>date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,<br>however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding<br>the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the<br>beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution<br>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<br>exceeding the Beneficial Ownership Limitation). |
| --- | --- |
7
| d) | Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly<br>or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii)<br>the Company or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition<br>of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender<br>offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted<br>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<br>the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,<br>in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory<br>share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or<br>(v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other<br>business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with<br>another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or<br>50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon<br>any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable<br>upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to<br>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<br>or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)<br>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<br>immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant).<br>For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate<br>Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction,<br>and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value<br>of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash<br>or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration<br>it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in<br>a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all<br>of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(d) pursuant to written agreements<br>in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental<br>Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity<br>evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding<br>number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable<br>and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental<br>Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account<br>the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock,<br>such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant<br>immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to<br>the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company”<br>under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of<br>this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and<br>the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally<br>with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall<br>assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect<br>as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the<br>avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(d) regardless of (i) whether the<br>Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction<br>occurs prior to the Initial Exercise Date. |
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8
| e) | Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest<br>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<br>as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding. |
|---|---|
| f) | Notice to Holder. |
| --- | --- |
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
9
Section 4. Transfer of Warrant.
| a) | Transferability. This Warrant and all rights hereunder (including, without limitation, any registration<br>rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated<br>agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its<br>agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if<br>required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable,<br>and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing<br>the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary,<br>the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full,<br>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<br>an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised<br>by a new holder for the purchase of Warrant Shares without having a new Warrant issued. |
|---|---|
| b) | New Warrants. Subject to compliance with applicable securities laws, this Warrant may be divided<br>or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying<br>the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance<br>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<br>Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued<br>on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except as<br>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<br>Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company<br>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<br>to the Holder, and for all other purposes, absent actual notice to the contrary. |
| --- | --- |
Section 5. Miscellaneous.
| a) | No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the<br>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),<br>except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”<br>pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company<br>be required to net cash settle an exercise of this Warrant. |
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10
| b) | Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the<br>Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate<br>relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which,<br>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,<br>if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in<br>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<br>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<br>exercised on the next succeeding Trading Day. |
| --- | --- |
| d) | Authorized Shares. The Company covenants that, during the period this Warrant is outstanding,<br> it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the<br> Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this<br> Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon<br> the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to<br> assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any<br> requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which<br> may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights<br> represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully<br> paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than<br> taxes in respect of any transfer occurring contemporaneously with such issue). |
| --- | --- |
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action, which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
11
| e) | Governing Law. All questions concerning the construction, validity, enforcement and interpretation<br>of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without<br>regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement<br>and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors,<br>officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting<br>in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in<br>the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction<br>contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any<br>claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is<br>an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being<br>served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence<br>of delivery) to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute<br>good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve<br>process in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of<br>this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’<br>fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. |
|---|---|
| f) | Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this<br>Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and<br>federal securities laws. |
| --- | --- |
| g) | Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder<br>on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding<br>the fact that the right to exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant,<br>if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the<br>Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited<br>to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant<br>hereto or in otherwise enforcing any of its rights, powers or remedies hereunder. |
| --- | --- |
12
| h) | Notices. Any and all notices or other communications or deliveries to be provided by the Holder<br>hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a<br>nationally recognized overnight courier service, addressed to the Company, at 115 Pullman Crossing Road, Suite 103, Grasonville, Maryland<br>21638, Attention: Chief Financial Officer, email address: cfo@ostherapies.com, or such other email address or address as the Company may<br>specify for such purposes by notice to the Holder. Any and all notices or other communications or deliveries to be provided by the Company<br>hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed<br>to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication<br>or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication<br>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<br>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<br>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<br>Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the<br>party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material,<br>non-public information regarding the Company or any Subsidiaries, the Company shall promptly file such notice with the Commission pursuant<br>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<br>to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise<br>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<br>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<br>recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages<br>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<br>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<br>obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and<br>the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time<br>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<br>consent of the Company, on the one hand, and the Holder, on the other hand. |
| --- | --- |
| m) | Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner<br>as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable<br>law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions<br>or the remaining provisions of this Warrant. |
| --- | --- |
| n) | Headings. The headings used in this Warrant are for the convenience of reference only and shall<br>not, for any purpose, be deemed a part of this Warrant. |
| --- | --- |
********************
(Signature Page Follows)
13
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.
| OS Therapies Incorporated | ||
|---|---|---|
| By: | ||
| Name: | Paul A. Romness, MPH | |
| Title: | President and Chief Executive Officer |
14
Exhibit A
NOTICE OF EXERCISE
TO: OSTherapies Incorporated
(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<br>as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number<br>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 InvestingEntity: __________________________________
Name of Authorized Signatory: ____________________________________________________
Title of Authorized Signatory: _____________________________________________________
Date: _________________________________________________________________________
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EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoingWarrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: | |
|---|---|
| (Please Print) | |
| Address: | |
| (Please Print) | |
| Phone Number: | |
| Email Address: | |
| Dated: _______________ __, ______ | |
| Holder’s Signature: | |
| Holder’s Address: |
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Exhibit 4.2
COMMON STOCK PURCHASE WARRANT
OS TherapiesIncorporated
| Warrant Shares: _______ | Issue Date: _______,<br>20__ (the “Issue Date”) |
|---|
THIS COMMON STOCK PURCHASE WARRANT (this “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 Issue Date (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on _______, 20__^1^ (the “Termination Date”) but not thereafter, to subscribe for and purchase from OSTherapies Incorporated, 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).
Section 1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Commission” means the United States Securities and Exchange Commission.
| ^1^ | Insert the date that is the five (5) year anniversary of<br>the Issue Date, provided that, if such date is not a Trading Day, insert the immediately following Trading Day. |
|---|
“Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Purchase Agreement” means the Securities Purchase Agreement, dated as of March 31, 2026, among the Company and the purchasers listed on the signature pages thereto, as amended, modified or supplemented from time to time in accordance with its terms.
“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 VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place, Woodmere, NY 11598 and an email address of info@vstocktransfer.com, and any successor transfer agent of the Company.
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“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants” means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Purchase Agreement.
Section 2. Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed 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) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and this Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agreethat, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number ofWarrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
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b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $1.40, 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) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice<br>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<br>Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading<br>hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at<br>the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or<br>(z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s<br>execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a<br>Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading<br>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<br>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<br>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<br>terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
| --- | --- |
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary to this Section 2(c).
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).
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d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the 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”), provided that the aggregate Exercise Price is received by the Company on the Warrant Share Delivery Date (other than in connection with a cashless exercise). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third (3^rd^) Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 9:00 a.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
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.
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iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including reasonable and customary 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 this 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 this 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 down to the lesser whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
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vii. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
e) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercise of this Warrant that are not in compliance with the Beneficial Ownership Limitation (other than in connection with information provided in connection with clause (C) below). In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of 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 written 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 61^st^ 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) Reserved.
c) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time while this Warrant is outstanding, the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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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 or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 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 be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
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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.
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 deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
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h) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, 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.
Section 4. Transfer of Warrant.
a) Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants. Subject to compliance with applicable securities laws, this Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
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Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash settle an exercise of this Warrant.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a 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 this 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).
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Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) 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.
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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 and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at 115 Pullman Crossing Road, Suite 103, Grasonville, Maryland 21638, Attention: Chief Financial Officer, email address: cfo@ostherapies.com, or such other email address or address as the Company may specify for such purposes by notice to the Holder. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 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 (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 promptly 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.
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j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder, on the other hand.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
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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.
| OS Therapies Incorporated | |
|---|---|
| By: | |
| Name: | |
| Title: |
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NOTICE OF EXERCISE
| To: | OS Therapies Incorporated |
|---|
(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<br>as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number<br>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 InvestingEntity: _________________________________________________
Name of Authorized Signatory: ___________________________________________________________________
Title of Authorized Signatory: ____________________________________________________________________
Date: ________________________________________________________________________________________
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ASSIGNMENT FORM
(To assign the foregoingWarrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: | |
|---|---|
| (Please Print) | |
| Address: | |
| (Please Print) | |
| Phone Number: | |
| Email Address: | |
| Dated: _______________ __, ______ | |
| Holder’s Signature:_______________________________ | |
| Holder’s Address:________________________________ |
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Exhibit4.3
PLACEMENTAGENT COMMON STOCK PURCHASE WARRANT
OSTherapies Incorporated
| Warrant<br> Shares: _______ | Initial<br> Exercise Date: _______, 20__ |
|---|---|
| Issue<br> Date: _______, 20__ |
THIS PLACEMENT AGENT COMMON STOCK PURCHASE WARRANT (this “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 _______, 20__^1^ (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on _______, 20__^2^ (the “Termination Date”) but not thereafter, to subscribe for and purchase from OS Therapies Incorporated, 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).
Section
- Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Commission” means the United States Securities and Exchange Commission.
| ^1^ | Insert<br>the date that is the six (6) month anniversary of the Issue Date, provided that, if such date is not a Trading Day, insert the immediately<br>following Trading Day. |
|---|---|
| ^2^ | Insert<br>the date that is the five (5) year anniversary of the Issue Date, provided that, if such date is not a Trading Day, insert the immediately<br>following Trading Day. |
| --- | --- |
“Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Purchase Agreement” means the Securities Purchase Agreement, dated as of March 31, 2026, among the Company and the purchasers listed on the signature pages thereto, as amended, modified or supplemented from time to time in accordance with its terms.
“Placement Agent Agreement” means the Placement Agent Agreement, dated as of March 31, 2026, between the Placement Agent and the Company, as amended, modified or supplemented from time to time in accordance with its terms.
“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 VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place, Woodmere, NY 11598 and an email address of info@vstocktransfer.com, and any successor transfer agent of the Company.
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“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants” means this Warrant and other Placement Agent Common Stock Purchase Warrants issued by the Company pursuant to the Placement Agent Agreement.
Section 2. Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed 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) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and this Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of thisWarrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the WarrantShares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount statedon the face hereof.
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b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $1.54, 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)<br> = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of<br>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<br>delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in<br>Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either<br>(y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common<br>Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable<br>Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered<br>within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day)<br>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<br>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<br>trading hours” on such Trading Day; |
|---|---|
| (B)<br> = | the Exercise Price of this Warrant, as adjusted hereunder; and |
| --- | --- |
| (X)<br> = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such<br>exercise were by means of a cash exercise rather than a cashless exercise. |
| --- | --- |
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary to this Section 2(c).
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).
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d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the 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”), provided that the aggregate Exercise Price is received by the Company on the Warrant Share Delivery Date (other than in connection with a cashless exercise). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third (3^rd^) Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 9:00 a.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
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.
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iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including reasonable and customary 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 this 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 this 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 down to the lesser whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
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vii. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
e) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercise of this Warrant that are not in compliance with the Beneficial Ownership Limitation (other than in connection with information provided in connection with clause (C) below). In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of 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 written 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 61^st^ 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) Reserved.
c) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time while this Warrant is outstanding, the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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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 or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 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 be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
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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.
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 deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
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h) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, 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.
Section 4 . Transfer of Warrant.
a) Transferability. Pursuant to FINRA Rule 5110(g), 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 this Warrant or any Warrant Shares issued upon exercise of this Warrant by any person for a period of 180 days immediately following the date of commencement of sales of the offering pursuant to which this Warrant is being issued, except (i) to Ceros Financial Services, Inc. or a placement agent or a selected dealer participating in the offering pursuant to which this Warrant is being issued or (2) as provided for in FINRA Rule 5110(g)(2). Subject to the foregoing restriction, this Warrant and all rights hereunder 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. Subject to compliance with applicable securities laws, 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.
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c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash settle an exercise of this Warrant.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a 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 this 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).
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Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) 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.
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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 and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at 115 Pullman Crossing Road, Suite 103, Grasonville, Maryland 21638, Attention: Chief Financial Officer, email address: cfo@ostherapies.com, or such other email address or address as the Company may specify for such purposes by notice to the Holder. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 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 (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 promptly file such notice with the Commission pursuant to a Current Report on Form 8-K.
14
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder, on the other hand.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(SignaturePage Follows)
15
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.
| OS Therapies Incorporated | |
|---|---|
| By: | |
| Name: | |
| Title: |
16
NOTICEOF EXERCISE
| To: | OS<br> Therapies Incorporated |
|---|
(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<br>lawful money of the United States; or |
|---|---|
| ☐ | if<br>permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c),<br>to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure<br>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: ________________________________________________________________________
Signatureof Authorized Signatory of Investing Entity: _________________________________________________
Name of Authorized Signatory: ___________________________________________________________________
Title of Authorized Signatory: ____________________________________________________________________
Date: ________________________________________________________________________________________
17
ASSIGNMENTFORM
(Toassign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchaseshares.)
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:________________________________ |
18
Exhibit 5.1
April 2, 2026
OS Therapies Incorporated
115 Pullman Crossing Road, Suite 103
Grasonville, Maryland 21638
Ladies and Gentlemen:
We are acting as legal counsel to OS Therapies Incorporated, a Delaware corporation (the “Company”), in connection with the offer and sale by the Company of (i) 2,505,073 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (“Common Stock”), (ii) pre-funded warrants to purchase up to 1,250,893 shares of Common Stock (the “Pre-Funded Warrants”), (iii) warrants to purchase up to 3,755,966 shares of Common Stock (the “Common Warrants”), (iv) warrants to purchase up to 187,798 shares of Common Stock (the “Placement Agent Warrants”) and (v) up to 5,194,657 shares of Common Stock issuable upon exercise of the Pre-Funded Warrants, Common Warrants and Placement Agent Warrants (the “Warrant Shares” and, collectively with the Shares, Pre-Funded Warrants, Common Warrants and Placement Agent Warrants, the “Securities”), pursuant to the Company’s Registration Statement on Form S-3 (Registration No. 333-289443) (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), on August 8, 2025 and declared effective by the Commission on August 12, 2025, including the base prospectus, dated August 25, 2025, constituting a part of the Registration Statement, filed by the Company with the Commission pursuant to Rule 424(b)(3) under the Act on August 25, 2025 (the “Base Prospectus”), as supplemented by the prospectus supplement, dated March 31, 2026, filed by the Company with the Commission pursuant to Rule 424(b)(5) under the Act on April 2, 2026 (such prospectus supplement, together with the Base Prospectus, the “Prospectus”).
In connection with this opinion letter, we have examined (a) the Registration Statement, (b) the Prospectus, (c) the Pre-Funded Warrants, (d) the Common Warrants, (e) the Placement Agent Warrants, (f) the Third Amended and Restated Certificate of Incorporation of the Company, as amended to date, (g) the Amended and Restated Bylaws of the Company, as amended to date, and (h) certain resolutions of the Board of Directors of the Company relating to the issuance, sale and registration of the Securities. In addition, we have examined and relied upon such corporate records of the Company, and have made such examination of law, as we have deemed necessary or appropriate for purposes of the opinions expressed below. As to certain factual matters, unless otherwise indicated, we have relied, to the extent we have deemed proper, on certificates of certain officers of the Company.
April 2, 2026
Page 2
We have assumed for purposes of rendering the opinions set forth herein, without any verification by us, the genuineness of all signatures, the legal capacity of all natural persons to execute and deliver documents, the authenticity and completeness of documents submitted to us as originals, the completeness and conformity with authentic original documents of all documents submitted to us as copies, and that all documents, books and records made available to us by the Company are accurate and complete.
Based upon, subject to and limited by the foregoing, we are of the opinion that:
| 1. | The Shares have been duly authorized by the Company and, upon issuance, delivery and payment therefor<br>in the manner contemplated by the Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable. |
|---|---|
| 2. | The Pre-Funded Warrants, Common Warrants and the Placement Agent Warrants have been duly authorized by<br>the Company and, when executed and delivered by the Company in the manner contemplated by the Registration Statement and the Prospectus,<br>will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms,<br>except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’<br>rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or<br>at law), (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities<br>laws, (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable<br>defenses and to the discretion of the court before which any proceeding therefor may be brought and (iv) that we express no opinion as<br>to whether a state court outside of the State of New York or a federal court of the United States would give effect to the choice of New<br>York law provided for in the Pre-Funded Warrants, Common Warrants and Placement Agent Warrants. |
| --- | --- |
| 3. | The Warrant Shares have been duly authorized by the Company and, when issued, delivered and paid for upon<br>valid exercise in accordance with the terms of the Pre-Funded Warrants, Common Warrants or Placement Agent Warrants, as applicable, will<br>be validly issued, fully paid and nonassessable. |
| --- | --- |
We are members of the Bar of the State of New York. We do not express any opinion as to the effect of any laws other than the laws of the State of New York and the General Corporation Law of the State of Delaware, and the federal laws of the United States of America, as in effect on the date hereof.
This letter speaks only at and as of its date and is based solely on the facts and circumstances known to us at and as of such date. We assume no obligation to revise or supplement this letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in fact or law that may hereafter occur.
April 2, 2026
Page 3
We hereby consent to the filing of this opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act with the Commission as an exhibit to the Current Report on Form 8-K to be filed by the Company in connection with the issuance and sale of the Securities and to the use of our name in the Prospectus under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
| Very truly yours, |
|---|
| /s/ Olshan Frome Wolosky LLP |
| OLSHAN FROME WOLOSKY LLP |
Exhibit10.1
SECURITIESPURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of March 31, 2026, between OS Therapies Incorporated, a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and, collectively, the “Purchasers”).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined herein), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
- DEFINITIONS
| 1.1 | Definitions.<br> In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement,<br> the following terms have the meanings set forth in this Section 1.1: |
|---|
“Acquiring Person” shall have the meaning ascribed to such term in Section 4.5.
“Action” shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Applicable Laws” shall have the meaning ascribed to such term in Section 3.1(nn).
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day other than Saturday, Sunday, any date which is a federal legal holiday in the United States or other day on which commercial banks in The City of New York are authorized or required by law or government action to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally are open for use by customers on such day.
“Closing” means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the first (1st) Trading Day following the date hereof (or the second (2nd) Trading Day following the date hereof if this Agreement is signed on a day that is not a Trading Day or after 4:00pm (New York City time) and before midnight (New York City time) on a Trading Day).
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the Common Stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common Warrant Shares” means, collectively, the shares of Common Stock issuable upon exercise of the Common Warrants.
“Common Warrants” means, collectively, the warrants delivered to the Purchasers at Closing in accordance with Section 2.2(a) hereof, which Common Warrants shall be immediately exercisable upon issuance and shall expire five (5) years from the date of issuance, in the form of Exhibit B attached hereto.
“Company Counsel” means Olshan Frome Wolosky LLP.
“Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith, which such Disclosure Schedules shall be deemed a part hereof.
“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
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“Exempt Issuance” means the issuance of (a) shares of Common Stock, options, restricted stock units, or other equity awards to employees, consultants, contractors, advisors, officers or directors of the Company pursuant to any stock or option plan or incentive plan or employee stock purchase plan duly adopted for such purpose, (b) securities (including options, rights or warrants) exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been voluntarily amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) shares of Common Stock or securities exercisable or exchangeable for, or convertible into, shares of Common Stock sold to employees, directors, consultants, or any of their affiliated entities in the ordinary course of business or pursuant to agreements or in connection with commitments in place as of the date hereof, and (d) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided in the case of each of clauses (c) and (d) that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period in Section 4.11(a) herein, and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“FDA” shall have the meaning ascribed to such term in Section 3.1(nn).
“GAAP” shall have the meaning ascribed to such term in Section 3.1(h).
“Governmental Authority” means any court or arbitrator or governmental or regulatory authority or third party with jurisdiction over the Company or any of its Subsidiaries or their respective assets.
“Indebtedness” shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Issuer Free Writing Prospectus” shall have the meaning ascribed to such term in Section 3.1(f)(ii).
“IT Systems and Data” shall have the meaning ascribed to such term in Section 3.1(mm).
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“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and the directors and executive officers, in the form of Exhibit A attached hereto.
“Material Adverse Effect” shall have the meaning ascribed to such term in Section 3.1(b).
“Material Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per Share Purchase Price” equals $1.40, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
“Per Pre-Funded Warrant Purchase Price” shall be the Per Share Purchase Price minus $0.001, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions relating to the Common Stock that occur after the date of this Agreement.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Placement Agent” means Ceros Financial Services, Inc.
“Pre-Funded Warrants” means, collectively, the warrants delivered to the Purchasers at Closing in accordance with Section 2.2(a) hereof, which Pre-Funded Warrants shall be exercisable immediately upon issuance and shall expire when exercised in full, in the form of Exhibit C attached hereto.
“Pre-Funded Warrant Shares” means, collectively, the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened in writing.
“Prospectus” means the base prospectus filed under the Registration Statement.
“Prospectus Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that will be filed with the Commission and delivered by the Company to each Purchaser at or prior to the Closing.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.8.
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“Registration Statement” means the effective registration statement with the Commission on Form S-3 (File No. 333-289443), as amended, including all information, documents and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Securities and includes any Rule 462(b) Registration Statement.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 462(b) Registration Statement” means any registration statement prepared by the Company registering additional Securities, which was filed with the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated by the Commission pursuant to the Securities Act.
“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities” means the Shares, Pre-Funded Warrants, Pre-Funded Warrant Shares, Common Warrants and Common Warrant Shares.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares” means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately available funds.
“Subsidiary” means any significant subsidiary of the Company within the meaning of Rule 1-02(w) under Regulation S-X and shall, where applicable, also include any direct or indirect significant subsidiary of the Company formed or acquired after the date hereof.
5
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transaction Documents” means this Agreement, the Pre-Funded Warrants, the Common Warrants, the Lock-Up Agreements and all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent” means VStock Transfer, LLC, and any successor transfer agent of the Company.
“Warrants” means the Pre-Funded Warrants and the Common Warrants.
“Warrant Shares” means the Pre-Funded Warrant Shares and the Common Warrant Shares.
ARTICLE 2. PURCHASE AND SALE
| 2.1 | Closing.<br> On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company<br> agrees to sell, and the Purchasers, severally and not jointly, agree to purchase (i) the<br> number of shares of Common Stock set forth under the heading “Subscription Amount”<br> on the Purchaser’s signature page hereto, at the Per Share Purchase Price and (ii) Common<br> Warrants exercisable for shares of Common Stock as calculated pursuant to Section 2.2(a);<br> provided, however, that, to the extent that a Purchaser determines, in its<br> sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and<br> any Person acting as a group together with such Purchaser or any of such Purchaser’s<br> Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as<br> such Purchaser may otherwise choose, in lieu of purchasing shares of Common Stock, such Purchaser<br> may elect to purchase Pre-Funded Warrants in such manner to result in the full Subscription<br> Amount being paid by such Purchaser to the Company. The “Beneficial Ownership Limitation”<br> shall be 4.99% (or, at the election of the Purchaser, 9.99%) of the number of shares of Common<br> Stock, in each case, immediately after giving effect to the issuance of the Securities on<br> the Closing Date. |
|---|
6
Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for Delivery Versus Payment (“DVP”) settlement with the Company or its designees. The Company shall deliver to each Purchaser its respective Shares and Pre-Funded Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur remotely via the exchange of documents and signatures or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of this Agreement by the Company and an applicable Purchaser through, and including the time immediately prior to the Closing (the “Pre-Settlement Period”), such Purchaser sells to any Person all, or any portion, of any Securities to be issued hereunder to such Purchaser at the Closing (collectively, the “Pre-Settlement Shares”), such Person shall, automatically hereunder (without any additional required actions by such Purchaser or the Company), be deemed to be a Purchaser under this Agreement unconditionally bound to purchase, and the Company shall be deemed unconditionally bound to sell, such Pre-Settlement Shares to such Person at the Closing; provided that the Company shall not be required to deliver any Pre-Settlement Shares to such Purchaser prior to the Company’s receipt of the Subscription Amount for such Pre-Settlement Shares hereunder; and provided, further, that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant by such Purchaser as to whether or not such Purchaser will elect to sell any Pre-Settlement Shares during the Pre-Settlement Period. The decision to sell any shares of Common Stock by such Purchaser shall solely be made at the time such Purchaser elects to effect any such sale, if any. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise (as defined in the Pre-Funded Warrants) delivered on or prior to 9:00 a.m. (New York City time) on the Closing Date, which may be delivered at any time after the time of execution of this Agreement, the Company agrees to deliver the Pre-Funded Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Closing Date and the Closing Date shall be the Warrant Share Delivery Date (as defined in the Pre-Funded Warrants) for purposes hereunder. Notwithstanding anything to the contrary herein and a Purchaser’s Subscription Amount set forth on the signature pages attached hereto, the number of Shares purchased by a Purchaser (and its Affiliates) hereunder shall not, when aggregated with all other shares of Common Stock owned by such Purchaser (and its Affiliates) at such time, result in such Purchaser beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act) in excess of 9.99% of the then issued and outstanding Common Stock outstanding at the Closing (the “Beneficial Ownership Maximum”), and such Purchaser’s Subscription Amount, to the extent it would otherwise exceed the Beneficial Ownership Maximum immediately prior to the Closing, shall be conditioned upon the issuance of Shares at the Closing to the other Purchasers signatory hereto. To the extent that a Purchaser’s beneficial ownership of the Shares would otherwise be deemed to exceed the Beneficial Ownership Maximum, such Purchaser’s Subscription Amount shall automatically be reduced as necessary in order to comply with this paragraph.
7
| 2.2 | Deliveries. |
|---|---|
| (a) | On<br> or prior to the Closing Date, the Company shall deliver or cause to be delivered to each<br> Purchaser the following: |
| --- | --- |
| (i) | this<br> Agreement duly executed by the Company; |
| --- | --- |
| (ii) | legal<br> opinion of Company Counsel, in a form reasonably acceptable to the Placement Agent and Purchasers; |
| --- | --- |
| (iii) | a<br> copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent<br> to deliver, on an expedited basis, in book entry form (unless otherwise requested by the<br> Purchasers) a number of Shares equal to such Purchaser’s Subscription Amount divided<br> by the Per Share Purchase Price, registered in the name of such Purchaser; |
| --- | --- |
| (iv) | the<br> Company’s wire instructions, on Company letterhead and executed by the Chief Executive<br> Officer or Chief Financial Officer; |
| --- | --- |
| (v) | the<br> Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities<br> Act); |
| --- | --- |
| (vi) | an<br> Officer’s Certificate, in form and substance reasonably satisfactory to the Placement<br> Agent; |
| --- | --- |
| (vii) | a<br> Secretary’s Certificate, in form and substance reasonably satisfactory to the Placement<br> Agent; |
| --- | --- |
| (viii) | for<br> each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered<br> in the name of such Purchaser to purchase up to a number of shares of Common Stock equal<br> to the portion of such Purchaser’s Subscription Amount applicable to the Pre-Funded<br> Warrants divided by the sum of the Per Pre-Funded Warrant Purchase Price, subject to adjustment<br> therein; |
| --- | --- |
| (ix) | the<br> Lock-Up Agreements; and |
| --- | --- |
| (x) | a<br> Common Warrant registered in the name of each Purchaser to purchase up to a number of shares<br> of Common Stock equal to 100% of the Purchaser’s Shares, with an exercise price equal<br> to $1.40, subject to adjustment therein. |
| --- | --- |
| (b) | On<br> or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the<br> Company the following: |
| --- | --- |
| (i) | this<br> Agreement duly executed by such Purchaser; and |
| --- | --- |
| (ii) | such<br> Purchaser’s Subscription Amount by wire transfer to the account specified by the Company. |
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8
| 2.3 | Closing<br> Conditions. |
|---|---|
| (a) | The<br> obligations of the Company hereunder in connection with the Closing are subject to the following<br> conditions being met: |
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| (i) | the<br> accuracy in all material respects (or, to the extent representations or warranties are qualified<br> by materiality or Material Adverse Effect, in all respects) on the Closing Date of the representations<br> and warranties of the Purchasers contained herein (unless such representation or warranty<br> is as of a specific date therein in which case they shall be accurate in all material respects<br> (or, to the extent representations or warranties are qualified by materiality or Material<br> Adverse Effect, in all respects) as of such date); |
| --- | --- |
| (ii) | all<br> obligations, covenants and agreements of each Purchaser required to be performed at or prior<br> to the Closing Date shall have been performed; and |
| --- | --- |
| (iii) | the<br> delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement. |
| --- | --- |
| (b) | The<br> respective obligations of the Purchasers hereunder in connection with the Closing are subject<br> to the following conditions being met: |
| --- | --- |
| (i) | the<br> accuracy in all material respects (or, to the extent representations or warranties are qualified<br> by materiality or Material Adverse Effect, in all respects) when made and on the Closing<br> Date of the representations and warranties of the Company contained herein (unless such representation<br> or warranty is as of a specific date therein in which case they shall be accurate in all<br> material respects (or, to the extent representations or warranties are qualified by materiality<br> or Material Adverse Effect, in all respects) as of such date); |
| --- | --- |
| (ii) | all<br> obligations, covenants and agreements of the Company required to be performed at or prior<br> to the Closing Date shall have been performed; |
| --- | --- |
| (iii) | the<br> delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; |
| --- | --- |
| (iv) | there<br> shall have been no Material Adverse Effect with respect to the Company since the date hereof;<br> and |
| --- | --- |
| (v) | from<br> the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended<br> by the Commission or the Company’s principal Trading Market, and, at any time prior<br> to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall<br> not have been suspended or limited, or minimum prices shall not have been established on<br> securities whose trades are reported by such service, or any Trading Market, nor shall a<br> banking moratorium have been declared either by the United States or New York State authorities<br> nor shall there have occurred any material outbreak or escalation of hostilities or other<br> national or international calamity of such magnitude in its effect on, or any material adverse<br> change in, any financial market which, in each case, in the reasonable judgment of such Purchaser,<br> makes it impracticable or inadvisable to purchase the Securities at the Closing. |
| --- | --- |
9
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
| 3.1 | Representations<br> and Warranties of the Company. Except as set forth in the SEC Reports, which qualify<br> these representations and warranties in their entirety, or in the Disclosure Schedules, which<br> Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or<br> otherwise made herein to the extent of the disclosure contained in the corresponding section<br> of the Disclosure Schedules, the Company hereby makes the following representations and warranties<br> to each Purchaser: |
|---|---|
| (a) | Subsidiaries.<br> All of the direct and indirect Subsidiaries of the Company are set forth in the SEC Reports.<br> The Company owns, directly or indirectly, all of its capital stock or other equity interests<br> of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares<br> of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable<br> and free of preemptive and similar rights to subscribe for or purchase securities. |
| --- | --- |
| (b) | Organization<br> and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated<br> or otherwise organized, validly existing and in good standing under the laws of the jurisdiction<br> of its incorporation or organization, with the requisite power and authority to own and use<br> its properties and assets and to carry on its business as currently conducted. Neither the<br> Company nor any Subsidiary is in violation nor default of any of the provisions of its respective<br> certificate or articles of incorporation, bylaws or other organizational or charter documents.<br> Each of the Company and the Subsidiaries is duly qualified to conduct business and is in<br> good standing as a foreign corporation or other entity in each jurisdiction in which the<br> nature of the business conducted or property owned by it makes such qualification necessary,<br> except where the failure to be so qualified or in good standing, as the case may be, could<br> not have or reasonably be expected to result in: (i) a material adverse effect on the legality,<br> validity or enforceability of any Transaction Document, (ii) a material adverse effect on<br> the results of operations, assets, business, prospects or condition (financial or otherwise)<br> of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect<br> on the Company’s ability to perform in any material respect on a timely basis its obligations<br> under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”)<br> and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing<br> or seeking to revoke, limit or curtail such power and authority or qualification. |
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10
| (c) | Authorization;<br> Enforcement. The Company has the requisite corporate power and authority to enter into<br> and to consummate the transactions contemplated by this Agreement and each of the other Transaction<br> Documents and otherwise to carry out its obligations hereunder and thereunder. The execution<br> and delivery of this Agreement and each of the other Transaction Documents by the Company<br> and the consummation by it of the transactions contemplated hereby and thereby have been<br> duly authorized by all necessary action on the part of the Company and no further action<br> is required by the Company, the Board of Directors or the Company’s stockholders in<br> connection herewith or therewith other than in connection with the Required Approvals. This<br> Agreement and each other Transaction Document to which it is a party has been (or upon delivery<br> will have been) duly executed by the Company and, when delivered in accordance with the terms<br> hereof and thereof, will constitute the valid and binding obligation of the Company enforceable<br> against the Company in accordance with its terms, except (i) as limited by general equitable<br> principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws<br> of general application affecting enforcement of creditors’ rights generally, (ii) as<br> limited by general equitable principles and laws relating to the availability of specific<br> performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification<br> and contribution provisions may be limited by applicable law. |
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| (d) | No<br> Conflicts. The execution, delivery and performance by the Company of this Agreement and<br> the other Transaction Documents to which it is a party, the issuance and sale of the Securities<br> and the consummation by it of the transactions contemplated hereby and thereby do not and<br> will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s<br> certificate or articles of incorporation or bylaws or other organizational or charter documents,<br> or (ii) conflict with, or constitute a default (or an event that with notice or lapse of<br> time or both would become a default) under, result in the creation of any Lien upon any of<br> the properties or assets of the Company or any Subsidiary, or give to others any rights of<br> termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation<br> (with or without notice, lapse of time or both) of, any agreement, credit facility, debt<br> or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding<br> to which the Company or any Subsidiary is a party or by which any property or asset of the<br> Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals,<br> conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,<br> decree or other restriction of any court or governmental authority to which the Company or<br> a Subsidiary is subject (including federal and state securities laws and regulations), or<br> by which any property or asset of the Company or a Subsidiary is bound or affected; except<br> in the case of each of clauses (ii) and (iii), such as would not have or reasonably be expected<br> to result in a Material Adverse Effect. |
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11
| (e) | Filings,<br> Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization<br> or order of, give any notice to, or make any filing or registration with, any court or other<br> federal, state (including state blue sky law), local or other governmental authority or other<br> Person in connection with the execution, delivery and performance by the Company of the Transaction<br> Documents, other than: (i) the filings required pursuant to Section 4.4 of this Agreement,<br> (ii) the filing with the Commission of the Prospectus Supplement, and (iii) notices and/or<br> application(s) to and approvals by each applicable Trading Market for the listing of the<br> Shares for trading thereon in the time and manner required thereby and (iv) filings required<br> by the Financial Industry Regulatory Authority (collectively, the “Required Approvals”).<br> All references in this Agreement to the Registration Statement, the Prospectus, the Prospectus<br> Supplement or any Issuer Free Writing Prospectus, or any amendments or supplements to any<br> of the foregoing, shall be deemed to include any copy thereof filed with the Commission on<br> EDGAR. |
|---|---|
| (f) | Issuance<br> of the Securities; Qualification; Registration; Securities Act Compliance and No Stop Orders. |
| --- | --- |
| (i) | The<br> Shares and Warrant Shares are duly authorized and, when issued and paid for in accordance<br> with the applicable Transaction Documents, will be duly and validly issued, fully paid and<br> non-assessable, free and clear of all Liens imposed by the Company, except for restrictions<br> set forth in the Transaction Documents. The Warrants have been duly authorized by the Company<br> and, when executed and delivered by the Company, will constitute valid and binding obligations<br> of the Company, enforceable against the Company in accordance with their terms, subject to<br> applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting<br> creditors’ rights generally and general principles of equity. The Securities are not<br> and will not be subject to the preemptive rights of any holders of any security of the Company<br> or similar contractual rights granted by the Company. |
| --- | --- |
| (ii) | The<br> Company has prepared and filed the Registration Statement in conformity with the requirements<br> of the Securities Act, which Registration Statement became effective on August 25, 2025,<br> including the Prospectus, and such amendments and supplements thereto as may have been required<br> to the date of this Agreement. The Registration Statement is effective under the Securities<br> Act and, to the Company’s knowledge, no stop order preventing or suspending the effectiveness<br> of the Registration Statement or suspending or preventing the use of the Prospectus has been<br> issued by the Commission and no proceedings for that purpose have been instituted or, to<br> the knowledge of the Company, are threatened by the Commission. The Company, if required<br> by the rules and regulations of the Commission, shall file the Prospectus Supplement with<br> the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments<br> thereto became effective, at the date of this Agreement and at the Closing Date, the Registration<br> Statement and any amendments thereto conformed and will conform in all material respects<br> to the requirements of the Securities Act and did not and will not contain any untrue statement<br> of a material fact or omit to state any material fact required to be stated therein or necessary<br> to make the statements therein not misleading; and the Prospectus, the Prospectus Supplement<br> and any amendments or supplements thereto, at the time the Prospectus Supplement or any amendment<br> or supplement thereto was issued and at the Closing Date, conformed and will conform in all<br> material respects to the requirements of the Securities Act and did not and will not contain<br> an untrue statement of a material fact or omit to state a material fact necessary in order<br> to make the statements therein, in the light of the circumstances under which they were made,<br> not misleading. The Company was at the time of the filing of the Registration Statement eligible<br> to use Form S-3. As of the date of this Agreement, the Company is eligible to use Form S-3<br> under the Securities Act and meets the transaction requirements as set forth in General Instruction<br> I.B.1 of Form S-3. |
| --- | --- |
12
| (g) | Capitalization.<br> The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g),<br> which Schedule 3.1(g) shall also include the number of shares of Common Stock owned beneficially,<br> and of record, by Affiliates of the Company as of the date hereof. The Company has an authorized<br> capitalization as set forth in the SEC Reports. Except as set forth on Schedule 3.1(g) and<br> as disclosed in the SEC Reports, the Company has not issued any capital stock since its most<br> recently filed periodic report under the Exchange Act, other than pursuant to the exercise<br> of employee stock options under the Company’s stock option plans, the issuance of shares<br> of Common Stock to employees pursuant to the Company’s employee stock purchase plans<br> or upon the vesting and settlement of restricted stock units under the Company’s equity<br> incentive plans and pursuant to the conversion and/or exercise of Common Stock Equivalents<br> outstanding as of the date of the most recently filed periodic report under the Exchange<br> Act. No Person has any right of first refusal, preemptive right, right of participation,<br> or any similar right to participate in the transactions contemplated by the Transaction Documents.<br> Except as set forth in Schedule 3.1(g) or as a result of the purchase and<br> sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe<br> to, calls or commitments of any character whatsoever relating to, or securities, rights or<br> obligations convertible into or exercisable or exchangeable for, or giving any Person any<br> right to subscribe for or acquire, any shares of Common Stock or the capital stock of any<br> Subsidiary, or contracts, commitments, understandings or arrangements by which the Company<br> or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common<br> Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities<br> will not obligate the Company or any Subsidiary to issue shares of Common Stock or other<br> securities to any Person (other than the Purchasers). Except as set forth on Schedule 3.1(g),<br> there are no outstanding securities of the Company or any Subsidiary with any provision that<br> adjusts the exercise, conversion, exchange or reset price of such security or instrument<br> upon an issuance of securities by the Company or any Subsidiary. There are no outstanding<br> securities or instruments of the Company or any Subsidiary that contain any redemption or<br> similar provisions, and there are no contracts, commitments, understandings or arrangements<br> by which the Company or any Subsidiary is or may become bound to redeem a security of the<br> Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom<br> stock” plans or agreements or any similar plan or agreement. All of the outstanding<br> shares of capital stock of the Company are duly authorized, validly issued, fully paid and<br> nonassessable, have been issued in compliance with all federal and state securities laws,<br> and none of such outstanding shares was issued in violation of any preemptive rights or similar<br> rights to subscribe for or purchase securities. No further approval or authorization of any<br> stockholder, the Board of Directors or others is required for the issuance and sale of the<br> Securities. There are no stockholders agreements, voting agreements or other similar agreements<br> with respect to the Company’s capital stock to which the Company is a party or, to<br> the knowledge of the Company, between or among any of the Company’s stockholders. |
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13
| (h) | SEC<br> Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements<br> and other documents required to be filed by the Company under the Securities Act and the<br> Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year<br> preceding the date hereof (or such shorter period as the Company was required by law or regulation<br> to file such material) (the foregoing materials, including the exhibits thereto and documents<br> incorporated by reference therein, together with the Prospectus and Prospectus Supplement,<br> being collectively referred to herein as the “SEC Reports”) on a timely<br> basis or has received a valid extension of such time of filing and has filed any such SEC<br> Reports prior to the expiration of any such extension. As of their respective dates, the<br> SEC Reports complied in all material respects with the requirements of the Securities Act<br> and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any<br> untrue statement of a material fact or omitted to state a material fact required to be stated<br> therein or necessary in order to make the statements therein, in the light of the circumstances<br> under which they were made, not misleading. The Company has never been an issuer subject<br> to Rule 144(i) under the Securities Act. The financial statements of the Company, together<br> with the related notes, included in the SEC Reports comply in all material respects with<br> applicable accounting requirements and the rules and regulations of the Commission with respect<br> thereto as in effect at the time of filing. Such financial statements have been prepared<br> in accordance with United States generally accepted accounting principles applied on a consistent<br> basis during the periods involved (“GAAP”), except as may be otherwise<br> specified in such financial statements or the notes thereto and except that unaudited financial<br> statements may not contain all footnotes required by GAAP, and fairly present in all material<br> respects the financial position of the Company and its consolidated Subsidiaries as of and<br> for the dates thereof and the results of operations and cash flows for the periods then ended,<br> subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. |
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| (i) | Material<br> Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest<br> audited financial statements included within the SEC Reports, except as set forth in the<br> SEC Reports, (i) there has been no event, occurrence or development that has had or<br> that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company<br> has not incurred any liabilities (contingent or otherwise) other than (A) trade payables<br> and accrued expenses incurred in the ordinary course of business consistent with past practice<br> and (B) liabilities not required to be reflected in the Company’s financial statements<br> pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company<br> has not altered its method of accounting in any material respect, (iv) the Company has<br> not declared or made any dividend or distribution of cash or other property to its stockholders<br> or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital<br> stock and (v) the Company has not issued any equity securities to any executive officer,<br> director or Affiliate, except pursuant to existing Company stock option or omnibus incentive<br> plans. The Company does not have pending before the Commission any request for confidential<br> treatment of information. Except for the issuance of the Securities contemplated by this<br> Agreement, no event, liability, fact, circumstance, occurrence or development has occurred<br> or exists or is reasonably expected to occur or exist with respect to the Company or its<br> Subsidiaries or their respective businesses, prospects, properties, operations, assets or<br> financial condition that would be required to be disclosed by the Company under applicable<br> securities laws at the time this representation is made or deemed made that has not been<br> publicly disclosed at least one (1) Trading Day prior to the date that this representation<br> is made. |
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14
| (j) | Litigation.<br> Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation,<br> Proceeding or investigation pending or, to the knowledge of the Company, threatened against<br> or affecting the Company, any Subsidiary or any of their respective properties before or<br> by any court, arbitrator, governmental or administrative agency or regulatory authority (federal,<br> state, county, local or foreign) (collectively, an “Action”) which, if<br> there were an unfavorable decision, would result in a Material Adverse Effect. None of the<br> Actions disclosed in the SEC Reports, challenges the legality, validity or enforceability<br> of any of the Transaction Documents or the Securities. During the last three (3) years prior<br> to the date of this Agreement, neither the Company nor any Subsidiary, nor any director or<br> executive officer thereof, is or has been the subject of any Action involving a claim of<br> violation of or liability under federal or state securities laws or a claim of breach of<br> fiduciary duty, which would result in a Material Adverse Effect. There has not been, and<br> to the knowledge of the Company, there is not pending or contemplated, any investigation<br> by the Commission involving the Company or any current or former director or executive officer<br> of the Company. The Commission has not issued any stop order or other order suspending the<br> effectiveness of any registration statement filed by the Company or any Subsidiary under<br> the Exchange Act or the Securities Act. |
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| (k) | Labor<br> Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with<br> respect to any of the employees of the Company, which would reasonably be expected to result<br> in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees<br> is a member of a union that relates to such employee’s relationship with the Company<br> or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective<br> bargaining agreement, and the Company and its Subsidiaries believe that their relationships<br> with their employees are good. To the knowledge of the Company, no executive officer of the<br> Company or any Subsidiary is, or is now expected to be, in violation of any material term<br> of any employment contract, confidentiality, disclosure or proprietary information agreement<br> or non-competition agreement, or any other contract or agreement or any restrictive covenant<br> in favor of any third-party, and the continued employment of each such executive officer<br> does not subject the Company or any of its Subsidiaries to any liability with respect to<br> any of the foregoing matters. The Company and its Subsidiaries are in compliance with all<br> applicable U.S. federal, state, local and foreign laws and regulations relating to employment<br> and employment practices, terms and conditions of employment and wages and hours, except<br> where the failure to be in compliance would not, individually or in the aggregate, reasonably<br> be expected to have a Material Adverse Effect. |
| --- | --- |
| (l) | Compliance.<br> Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no<br> event has occurred that has not been waived that, with notice or lapse of time or both, would<br> result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary<br> received notice of a claim that it is in default under or that it is in violation of, any<br> indenture, loan or credit agreement or any other agreement or instrument to which it is a<br> party or by which it or any of its properties is bound (whether or not such default or violation<br> has been waived), (ii) is in violation of any judgment, decree, or order of any court, arbitrator<br> or other governmental authority or (iii) is or, in the last three (3) years, has been in<br> violation of any statute, rule, ordinance or regulation of any governmental authority, including<br> without limitation all foreign, federal, state and local laws relating to taxes, environmental<br> protection, occupational health and safety, product quality and safety and employment and<br> labor matters, except in each case as would not have or reasonably be expected to result<br> in a Material Adverse Effect. |
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15
| (m) | Environmental<br> Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state,<br> local and foreign laws relating to pollution or protection of human health or the environment<br> (including ambient air, surface water, groundwater, land surface or subsurface strata), including<br> laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,<br> contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous<br> Materials”) into the environment, or otherwise relating to the manufacture, processing,<br> distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,<br> as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,<br> licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered,<br> promulgated or approved thereunder (“Environmental Laws”); (ii) have received<br> all permits licenses or other approvals required of them under applicable Environmental Laws<br> to conduct their respective businesses; and (iii) are in compliance with all terms and conditions<br> of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure<br> to so comply would be reasonably expected to have, individually or in the aggregate, a Material<br> Adverse Effect. |
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| (n) | Regulatory<br> Permits. The Company and the Subsidiaries possess all certificates, authorizations and<br> permits issued by the appropriate federal, state, local or foreign regulatory authorities<br> necessary to conduct their respective businesses as described in the SEC Reports, except<br> where the failure to possess such permits would not reasonably be expected to result in a<br> Material Adverse Effect (“Material Permits”), and neither the Company<br> nor any Subsidiary has received any notice of proceedings relating to the revocation or modification<br> of any Material Permit. |
| --- | --- |
| (o) | Title<br> to Assets. Except as set forth in the SEC Reports, the Company and the Subsidiaries have<br> good and marketable title in fee simple to all real property owned by them and good and marketable<br> title in all personal property owned by them that is material to the business of the Company<br> and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do<br> not materially affect the value of such property and do not materially interfere with the<br> use made and proposed to be made of such property by the Company and the Subsidiaries, (ii)<br> Liens for the payment of federal, state or other taxes, for which appropriate reserves have<br> been made therefor in accordance with GAAP and the payment of which is neither delinquent<br> nor subject to penalties and (iii) such as would not, individually or in the aggregate, result<br> in a Material Adverse Effect. Any real property and facilities currently held under lease<br> by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable<br> leases with which the Company and the Subsidiaries are in compliance in all material respects. |
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16
| (p) | Intellectual<br> Property. Except as set forth in the SEC Reports, (i) the Company and each of its<br> Subsidiaries owns or has adequate rights to use all trademarks, trade names, domain names,<br> patents, patent rights, mask works, copyrights, technology, know-how (including trade secrets<br> and other unpatented or unpatentable proprietary or confidential information, systems or<br> procedures), service marks, trade dress rights and other intellectual property and registrations<br> and applications for registration for any of the foregoing that are, in each case, material<br> to the Company (collectively, “Intellectual Property”) and has such other<br> rights, licenses, approvals and governmental authorizations, in each case, sufficient to<br> conduct its business as now conducted and as now proposed to be conducted in all material<br> respects without any known violation or conflict with any third party Intellectual Property,<br> and, to the Company’s and its Subsidiaries’ knowledge, there are no rights of<br> third parties to any such Intellectual Property owned by the Company and its Subsidiaries<br> and none of the foregoing Intellectual Property rights owned or, licensed by the Company<br> or any of its Subsidiaries is invalid or unenforceable, (ii) the Company has no knowledge<br> of any infringement by it or any of its Subsidiaries of Intellectual Property rights of others,<br> and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding<br> or claim by others that the Company and its Subsidiaries infringe or otherwise violate any<br> Intellectual Property rights of others, where such infringement or violation would have a<br> Material Adverse Effect, (iii) the Company is not aware of any material infringement,<br> misappropriation or violation by others of, or conflict by others with rights of the Company<br> or any of its Subsidiaries with respect to, any Intellectual Property, (iv) there is no suit,<br> proceeding or claim being made against the Company or any of its Subsidiaries or, to the<br> knowledge of the Company and its Subsidiaries, any employee of the Company or any of its<br> Subsidiaries, regarding Intellectual Property, challenging the Company’s and its Subsidiaries’<br> rights in or to any such Intellectual Property or alleging other infringement that would<br> have a Material Adverse Effect and the Company is unaware of any facts which could form a<br> reasonable basis for any such action, suit, proceeding or claim, (v) to the Company’s<br> knowledge, there is no third-party U.S. patent or published U.S. patent application that<br> contains claims for which an “interference proceeding” (as defined in 35 U.S.C.<br> § 135) has been commenced against any material patent or patent application described<br> in the Prospectus as being owned by or licensed to the Company and (vi) the Company<br> and its Subsidiaries have not received any notice of infringement with respect to any patent<br> or any notice challenging the validity, scope or enforceability of any Intellectual Property<br> owned by or licensed to the Company or any of its Subsidiaries, in each case the loss of<br> which patent or Intellectual Property (or loss of rights thereto) would have a Material Adverse<br> Effect. The Company and its Subsidiaries have taken all reasonable steps necessary to secure<br> their interests in such Intellectual Property from their employees and contractors (including,<br> but not limited to, assignments of such Intellectual Property from such employees and contractors)<br> and to protect the confidentiality of all of their confidential information and trade secrets<br> and that of third parties in their possession to the extent contractually required to do<br> so. |
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| (q) | Insurance.<br> The Company and the Subsidiaries are insured by insurers of recognized financial responsibility<br> against such losses and risks and in such amounts as are prudent and customary in the businesses<br> in which the Company and the Subsidiaries are engaged, including, but not limited to, directors<br> and officers insurance coverage in amount deemed prudent by the Company. Neither the Company<br> nor any Subsidiary has any reason to believe that it will not be able to renew its existing<br> insurance coverage as and when such coverage expires or to obtain similar coverage from similar<br> insurers as may be necessary to continue its business at a cost that would not result in<br> a Material Adverse Effect. |
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| (r) | Transactions<br> with Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers<br> or directors of the Company or any Subsidiary and, to the knowledge of the Company, none<br> of the employees of the Company or any Subsidiary is presently a party to any transaction<br> with the Company or any Subsidiary (other than for services as employees, officers and directors),<br> including any contract, agreement or other arrangement providing for the furnishing of services<br> to or by, providing for rental of real or personal property to or from, providing for the<br> borrowing of money from or lending of money to or otherwise requiring payments to or from<br> any officer, director or such employee or, to the knowledge of the Company, any entity in<br> which any officer, director, or any such employee has a substantial interest or is an officer,<br> director, trustee, stockholder, member or partner, in each case in excess of $120,000 other<br> than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement<br> for expenses incurred on behalf of the Company and (iii) other employee benefits, including<br> stock option agreements under any stock option plan of the Company. |
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| (s) | Sarbanes-Oxley;<br> Internal Accounting Controls. To the Company’s knowledge, the Company and the Subsidiaries<br> are in compliance in all material respects with any and all applicable requirements of the<br> Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any<br> and all applicable rules and regulations promulgated by the Commission thereunder that are<br> effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries<br> maintain a system of internal accounting controls designed to provide reasonable assurance<br> that: (i) transactions are executed in accordance with management’s general or<br> specific authorizations, (ii) transactions are recorded as necessary to permit preparation<br> of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access<br> to assets is permitted only in accordance with management’s general or specific authorization,<br> and (iv) the recorded accountability for assets is compared with the existing assets<br> at reasonable intervals and appropriate action is taken with respect to any differences.<br> The Company has established disclosure controls and procedures (as defined in Exchange Act<br> Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and<br> procedures to ensure that material information required to be disclosed by the Company in<br> the reports it files or submits under the Exchange Act is recorded, processed, summarized<br> and reported, within the time periods specified in the Commission’s rules and forms.<br> Except as set forth in the SEC Reports, the Company’s certifying officers have evaluated<br> the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries<br> as of the end of the period covered by the most recently filed periodic report under the<br> Exchange Act (such date, the “Evaluation Date”). The Company presented<br> in its most recently filed periodic report under the Exchange Act the conclusions of the<br> certifying officers about the effectiveness of the disclosure controls and procedures based<br> on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been<br> no changes in the internal control over financial reporting (as such term is defined in the<br> Exchange Act) of the Company that have materially affected, or are reasonably likely to materially<br> affect, the internal control over financial reporting of the Company and its Subsidiaries. |
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| (t) | Certain<br> Fees. Except for the fees and expenses of the Placement Agent as set forth in the Placement<br> Agent Agreement, or as otherwise disclosed in the Prospectus Supplement, no brokerage or<br> finder’s fees or commissions are or will be payable by the Company or any Subsidiary<br> to any broker, financial advisor or consultant, finder, placement agent, investment banker,<br> bank or other Person with respect to the transactions contemplated by the Transaction Documents.<br> The Purchasers shall have no obligation with respect to any fees or with respect to any claims<br> made by or on behalf of other Persons for fees of a type contemplated in this Section that<br> may be due in connection with the transactions contemplated by the Transaction Documents. |
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| (u) | Investment<br> Company. The Company is not and immediately after receipt of payment for the Securities,<br> will not be, an “investment company” within the meaning of the Investment Company<br> Act of 1940, as amended. The Company shall conduct its business in a manner so that it will<br> not become an “investment company” subject to registration under the Investment<br> Company Act of 1940, as amended. |
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| (v) | Registration<br> Rights. Except as set forth in the SEC Reports, the Registration Statement, the Preliminary<br> Prospectus and the Prospectus, no Person has any right to cause the Company or any Subsidiary<br> to effect the registration under the Securities Act of any securities of the Company or any<br> Subsidiary that has not been satisfied or waived prior to the date hereof. |
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| (w) | Listing<br> and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b)<br> or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to<br> its knowledge is likely to have the effect of, terminating the registration of the Common<br> Stock under the Exchange Act nor has the Company received any notification that the Commission<br> is contemplating terminating such registration. Except as disclosed in the SEC Reports, the<br> Company has not, in the 12 months preceding the date hereof, received notice from any Trading<br> Market on which the Common Stock is or has been listed or quoted to the effect that the Company<br> is not in compliance with the listing or maintenance requirements of such Trading Market.<br> Except as set forth in the SEC Reports, the Company is, and has no reason to believe that<br> it will not in the foreseeable future continue to be, in compliance with all such listing<br> and maintenance requirements. The Common Stock is currently eligible for electronic transfer<br> through the Depository Trust Company or another established clearing corporation and the<br> Company is current in payment of the fees to the Depository Trust Company (or such other<br> established clearing corporation) in connection with such electronic transfer. |
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| (x) | Application<br> of Takeover Protections. The Company and the Board of Directors have taken all necessary<br> action, if any, in order to render inapplicable any control share acquisition, business combination,<br> poison pill (including any distribution under a rights agreement) or other similar anti-takeover<br> provision under the Company’s certificate of incorporation (or similar charter documents)<br> or the laws of its state of incorporation that is or could become applicable to the Purchasers<br> as a result of the Purchasers and the Company fulfilling their obligations or exercising<br> their rights under the Transaction Documents, including without limitation as a result of<br> the Company’s issuance of the Securities and the Purchasers’ ownership of the<br> Securities. |
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| (y) | Disclosure.<br> Except with respect to the material terms and conditions of the transactions contemplated<br> by the Transaction Documents and the representations made in Section 3.1(i), the Company<br> confirms that neither it nor any other Person acting on its behalf has provided any of the<br> Purchasers or their agents or counsel with any information that it believes constitutes or<br> might constitute material, non-public information which is not otherwise disclosed in the<br> Prospectus Supplement. The Company understands and confirms that the Purchasers will rely<br> on the foregoing representation in effecting transactions in securities of the Company. All<br> of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the<br> Company and its Subsidiaries, their respective businesses and the transactions contemplated<br> hereby, including the Disclosure Schedules to this Agreement, when taken together as a whole,<br> is true and correct and does not contain any untrue statement of a material fact or omit<br> to state any material fact necessary in order to make the statements made therein, in the<br> light of the circumstances under which they were made, not misleading. The press releases<br> disseminated by the Company during the twelve months preceding the date of this Agreement<br> taken as a whole do not contain any untrue statement of a material fact or omit to state<br> a material fact required to be stated therein or necessary in order to make the statements<br> therein, in the light of the circumstances under which they were made and when made, not<br> misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations<br> or warranties with respect to the transactions contemplated hereby other than those specifically<br> set forth in Section 3.2 hereof. |
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| (z) | No<br> Integrated Offering. Assuming the accuracy of the Purchasers’ representations and<br> warranties set forth in Section 3.2, neither the Company, nor any of its controlled Affiliates,<br> nor any Person acting on its or their behalf has, directly or indirectly, made any offers<br> or sales of any security or solicited any offers to buy any security, under circumstances<br> that would cause this offering of the Securities to be integrated with prior offerings by<br> the Company for purposes of (i) the Securities Act which would require the registration<br> of any such securities under the Securities Act, or (ii) any applicable shareholder<br> approval provisions of any Trading Market on which any of the securities of the Company are<br> listed or designated. |
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| (aa) | Indebtedness.<br> The SEC Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness<br> of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.<br> For the purposes of this Agreement, “Indebtedness” means (x) any<br> liabilities for borrowed money or amounts owed in excess of $100,000 (other than trade accounts<br> payable or accrued payroll liabilities incurred in the ordinary course of business), (y) all<br> guaranties, endorsements and other contingent obligations in respect of indebtedness of others,<br> whether or not the same are or should be reflected in the Company’s consolidated balance<br> sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments<br> for deposit or collection or similar transactions in the ordinary course of business; and<br> (z) the present value of any lease payments in excess of $100,000 due under leases required<br> to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default<br> with respect to any Indebtedness, which defaults, individually or in the aggregate, would<br> have a Material Adverse Effect. |
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| (bb) | Tax<br> Status. Except for matters that would not, individually or in the aggregate, have or<br> reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries<br> each (i) has made or filed all material United States federal, state and local income<br> and all foreign income and franchise tax returns, reports and declarations required by any<br> jurisdiction to which it is subject, (ii) has paid all material taxes and other governmental<br> assessments and charges that are material in amount, shown or determined to be due on such<br> returns, reports and declarations and (iii) has set aside on its books provision reasonably<br> adequate for the payment of all material taxes for periods subsequent to the periods to which<br> such returns, reports or declarations apply. There are no unpaid taxes in any material amount<br> claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company<br> or of any Subsidiary know of no basis for any such claim. |
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| (cc) | Foreign<br> Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the<br> Company or any Subsidiary, any agent or other person acting on behalf of the Company or any<br> Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,<br> gifts, entertainment or other unlawful expenses related to foreign or domestic political<br> activity, (ii) made any unlawful payment to foreign or domestic government officials<br> or employees or to any foreign or domestic political parties or campaigns from corporate<br> funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary<br> (or made by any person acting on its behalf of which the Company is aware) which is in violation<br> of law or (iv) violated in any material respect any provision of FCPA. |
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| (dd) | Accountants.<br> The Company’s accounting firm is MaloneBailey, LLP. To the knowledge and belief of<br> the Company, such accounting firm (i) is a registered public accounting firm as required<br> by the Exchange Act and (ii) has expressed its opinion with respect to the financial<br> statements to be included in the Company’s Annual Report for the fiscal year ended<br> December 31, 2025. |
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| (ee) | Acknowledgment<br> Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees<br> that, to its knowledge, each of the Purchasers is acting solely in the capacity of an arm’s<br> length purchaser with respect to the Transaction Documents and the transactions contemplated<br> thereby. The Company further acknowledges that, to its knowledge, no Purchaser is acting<br> as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect<br> to the Transaction Documents and the transactions contemplated thereby and any advice given<br> by any Purchaser or any of their respective representatives or agents in connection with<br> the Transaction Documents and the transactions contemplated thereby is merely incidental<br> to the Purchasers’ purchase of the Securities. The Company further represents to each<br> Purchaser that the Company’s decision to enter into this Agreement and the other Transaction<br> Documents has been based solely on the independent evaluation of the transactions contemplated<br> hereby by the Company and its representatives. |
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| (ff) | Acknowledgment<br> Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere<br> herein to the contrary notwithstanding (except for Sections 3.2(g) and 4.13 hereof),<br> it is understood and acknowledged by the Company that: (i) none of the Purchasers has agreed<br> to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative”<br> securities based on securities issued by the Company or to hold the Securities for any specified<br> term, (ii) past or future open market or other transactions by any Purchaser, specifically<br> including, without limitation, Short Sales or “derivative” transactions, before<br> or after the closing of this or future private placement transactions, may negatively impact<br> the market price of the Company’s publicly-traded securities, (iii) any Purchaser,<br> and counter-parties in “derivative” transactions to which any such Purchaser<br> is a party, directly or indirectly, presently may have a “short” position in<br> the Common Stock and (iv) each Purchaser shall not be deemed to have any affiliation<br> with or control over any arm’s length counter-party in any “derivative”<br> transaction. The Company further understands and acknowledges that (y) one or more Purchasers<br> may engage in legal hedging activities at various times during the period that the Securities<br> are outstanding and (z) such hedging activities (if any) could reduce the value of the<br> existing stockholders’ equity interests in the Company at and after the time that the<br> hedging activities are being conducted. The Company acknowledges that such aforementioned<br> hedging activities do not constitute a breach of any of the Transaction Documents. |
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| (gg) | Regulation<br> M Compliance. The Company has not, and to its knowledge no one acting on its behalf has,<br> (i) taken, directly or indirectly, any action designed to cause or to result in the<br> stabilization or manipulation of the price of any security of the Company to facilitate the<br> sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any<br> compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed<br> to pay to any Person any compensation for soliciting another to purchase any other securities<br> of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the<br> Company’s placement agent in connection with the placement of the Securities. |
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| (hh) | Stock<br> Option Plans. Each stock option granted by the Company under the Company’s stock<br> option plan was granted (i) in accordance with the terms of the Company’s stock<br> option plan and (ii) with an exercise price at least equal to the fair market value<br> of the Common Stock on the date such stock option would be considered granted under GAAP<br> and applicable law. No stock option granted under the Company’s stock option plan has<br> been backdated. The Company has not knowingly granted, and there is no and has been no Company<br> policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate<br> the grant of stock options with, the release or other public announcement of material information<br> regarding the Company or its Subsidiaries or their financial results or prospects. |
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| (ii) | Office<br> of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s<br> knowledge, any director, officer, agent, employee or affiliate of the Company or any Subsidiary<br> is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control<br> of the U.S. Treasury Department (“OFAC”). |
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| (jj) | U.S.<br> Real Property Holding Corporation. The Company is not and has never been a U.S. real<br> property holding corporation within the meaning of Section 897 of the Internal Revenue Code<br> of 1986, as amended, and the Company shall so certify upon Purchaser’s request. |
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| (kk) | Bank<br> Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the<br> Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation<br> by the Board of Governors of the Federal Reserve System (the “Federal Reserve”).<br> Neither the Company nor any of its Subsidiaries owns or controls, directly or indirectly,<br> five percent (5%) or more of the outstanding shares of any class of voting securities or<br> twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject<br> to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its<br> Subsidiaries exercises a controlling influence over the management or policies of a bank<br> or any entity that is subject to the BHCA and to regulation by the Federal Reserve. |
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| (ll) | Money<br> Laundering. The operations of the Company and its Subsidiaries are and have been conducted<br> at all times in compliance in all material respects with applicable financial record-keeping<br> and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,<br> as amended, applicable money laundering statutes and applicable rules and regulations thereunder<br> (collectively, the “Money Laundering Laws”), and no Action or Proceeding<br> by or before any court or governmental agency, authority or body or any arbitrator involving<br> the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to<br> the knowledge of the Company or any Subsidiary, threatened. |
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| (mm) | Cybersecurity.<br> To the knowledge of the Company, except as would not, individually or in the aggregate, have<br> a Material Adverse Effect (i)(x) there has been no security breach or other compromise<br> of or relating to any of the Company’s or any Subsidiary’s information technology<br> and computer systems, networks, hardware, software, data (including the data of its respective<br> customers, employees, suppliers, vendors and any third party data maintained by or on behalf<br> of it), equipment or technology (collectively, “IT Systems and Data”)<br> and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge<br> of any event or condition that would reasonably be expected to result in, any security breach<br> or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries<br> are presently in compliance with all applicable laws or statutes and all judgments, orders,<br> rules and regulations of any court or arbitrator or governmental or regulatory authority,<br> internal policies and contractual obligations relating to the privacy and security of IT<br> Systems and Data and to the protection of such IT Systems and Data from unauthorized use,<br> access, misappropriation or modification, except as would not, individually or in the aggregate,<br> have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented<br> and maintained commercially reasonable safeguards to maintain and protect its material confidential<br> information and the integrity, continuous operation, redundancy and security of all IT Systems<br> and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster<br> recovery technology consistent with commercially reasonable industry standards and practices. |
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| (nn) | Compliance<br> with Laws. Each of the Company and its Subsidiaries: (A) is and at all times has<br> been in compliance with all statutes, rules, or regulations applicable to the ownership,<br> testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling,<br> promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured<br> or distributed by the Company or its Subsidiaries (“Applicable Laws”),<br> except as would not, individually or in the aggregate, reasonably be expected to result in<br> a Material Adverse Effect; (B) has not received any U.S. Food and Drug Administration<br> (“FDA”) Form 483, written notice of adverse finding, warning letter, untitled<br> letter or other correspondence or written notice from the FDA or any other Governmental Authority<br> alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates,<br> approvals, clearances, authorizations, permits and supplements or amendments thereto required<br> by any such Applicable Laws (“Authorizations”) except for a noncompliance<br> that would not reasonably be expected to have a Material Adverse Effect; (C) possesses<br> all material Authorizations and such Authorizations are valid and in full force and effect<br> and are not in violation of any term of any such Authorizations except for a violation that<br> would not reasonably be expected to have a Material Adverse Effect; (D) has not received<br> written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,<br> arbitration or other action from any Governmental Authority or third party alleging that<br> any product operation or activity is in violation of any Applicable Laws or Authorizations<br> and has no knowledge that any such Governmental Authority or third party is considering any<br> such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has<br> not received written notice that any Governmental Authority has taken, is taking or intends<br> to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge<br> that any such Governmental Authority is considering such action; (F) has filed, obtained,<br> maintained or submitted all material reports, documents, forms, written notices, applications,<br> records, claims, submissions and supplements or amendments as required by any Applicable<br> Laws or Authorizations and that all such reports, documents, forms, written notices, applications,<br> records, claims, submissions and supplements or amendments were complete and correct in all<br> material respects on the date filed (or were corrected or supplemented by a subsequent submission);<br> and (G) has not, either voluntarily or involuntarily, initiated, conducted, or issued<br> or caused to be initiated, conducted or issued, any recall which had or is expected to have<br> a Material Adverse Effect, market withdrawal or replacement, safety alert, post-sale warning,<br> “dear healthcare provider” letter, or other written notice or action relating<br> to the alleged lack of safety or efficacy of any product or any alleged product defect or<br> violation and, to the Company’s knowledge, no third party has initiated, conducted<br> or intends to initiate any such notice or action. |
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| 3.2 | Representations<br> and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser,<br> hereby represents and warrants as of the date hereof and as of the Closing Date to the Company<br> as follows (unless as of a specific date therein, in which case they shall be accurate as<br> of such date): |
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| (a) | Organization;<br> Authority. Such Purchaser is either an individual or an entity duly incorporated or formed,<br> validly existing and in good standing under the laws of the jurisdiction of its incorporation<br> or formation with full right, corporate, partnership, limited liability company or similar<br> power and authority to enter into and to consummate the transactions contemplated by the<br> Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.<br> The execution and delivery of the Transaction Documents and performance by such Purchaser<br> of the transactions contemplated by the Transaction Documents have been duly authorized by<br> all necessary corporate, partnership, limited liability company or similar action, as applicable,<br> on the part of such Purchaser. Each Transaction Document to which it is a party has been<br> duly executed by such Purchaser, and when delivered by such Purchaser in accordance with<br> the terms hereof, will constitute the valid and legally binding obligation of such Purchaser,<br> enforceable against it in accordance with its terms, except (i) as limited by general<br> equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and<br> other laws of general application affecting enforcement of creditors’ rights generally,<br> (ii) as limited by laws relating to the availability of specific performance, injunctive<br> relief or other equitable remedies and (iii) insofar as indemnification and contribution<br> provisions may be limited by applicable law. |
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| (b) | No<br> Conflicts. The execution, delivery and performance by the Purchaser of this Agreement,<br> the other Transaction Documents to which it is a party, and the consummation by the Purchaser<br> of the transactions contemplated hereby and thereby will not (i) result in a violation<br> of the organizational documents of the Purchaser, (ii) conflict with, or constitute<br> a default (or an event which with notice or lapse of time or both would become a default)<br> under, or give to others any rights of termination, amendment, acceleration or cancellation<br> of, any agreement, indenture or instrument to which the Purchaser is a party, or (iii) result<br> in a violation by such Purchaser of any law, rule, regulation, order, judgment or decree<br> (including federal and state securities laws) applicable to such Purchaser, except in the<br> case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations<br> which would not, individually or in the aggregate, reasonably be expected to have a material<br> adverse effect on the ability of the Purchaser to perform its obligations under the Transaction<br> Documents to which it is a party. |
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| (c) | Understandings<br> or Arrangements. Such Purchaser is acquiring the Securities as principal for its own<br> account, for investment purposes only, and has no direct or indirect arrangement or understandings<br> with any other persons to distribute or regarding the distribution of such Securities (this<br> representation and warranty not limiting such Purchaser’s right to sell the Securities<br> pursuant to the Registration Statement or otherwise in compliance with applicable federal<br> and state securities laws). |
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| (d) | Experience<br> of Such Purchaser. Such Purchaser, either alone or together with its representatives,<br> has such knowledge, sophistication and experience in business and financial matters so as<br> to be capable of evaluating the merits and risks of the prospective investment in the Securities,<br> and has so evaluated the merits and risks of its decision to purchase Securities pursuant<br> to the Transaction Documents. The Purchaser understands that nothing in this Agreement or<br> any other materials presented by or on behalf of the Company to the Purchaser in connection<br> with the purchase of the Securities constitutes legal, tax or investment advice. The Purchaser<br> has consulted such legal, tax and investment advisors as it, in its sole discretion, has<br> deemed necessary or appropriate in connection with its purchase of the Securities. The Purchaser<br> understands that the Placement Agent has acted solely as the agent of the Company in this<br> placement of the Securities and the Purchaser has not relied on the business or legal advice<br> of the Placement Agent or any of their agents, counsel or Affiliates in making its investment<br> decision hereunder, and confirms that none of such Persons has made any representations or<br> warranties to the Purchaser in connection with the transactions contemplated by the Transaction<br> Documents. Such Purchaser is able to bear the economic risk of an investment in the Securities<br> and, at the present time, is able to afford a complete loss of such investment. |
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| (e) | Access<br> to Information. Such Purchaser acknowledges that it has had the opportunity to review<br> the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports,<br> the Registration Statement and Prospectus and has been afforded (i) the opportunity<br> to ask such questions as it has deemed necessary of, and to receive answers from, representatives<br> of the Company concerning the terms and conditions of the offering of the Securities and<br> the merits and risks of investing in the Securities; (ii) access to information about<br> the Company and its financial condition, results of operations, business, properties, management<br> and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity<br> to obtain such additional information that the Company possesses or can acquire without unreasonable<br> effort or expense that is necessary to make an informed investment decision with respect<br> to the investment. Such Purchaser acknowledges and agrees that neither the Placement Agent<br> nor any Affiliate of the Placement Agent has provided such Purchaser with any information<br> or advice with respect to the Securities nor is such information or advice necessary or desired.<br> Neither the Placement Agent nor any Affiliate has made or makes any representation as to<br> the Company or the quality of the Securities and the Placement Agent and any Affiliate may<br> have acquired non-public information with respect to the Company which such Purchaser agrees<br> need not be provided to it. In connection with the issuance of the Securities to such Purchaser,<br> neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or<br> fiduciary to such Purchaser. The Purchaser understands and acknowledges that his, her or<br> its purchase of the Securities is a speculative investment that involves a high degree of<br> risk and the potential loss of their entire investment and has carefully read and considered<br> the matters and Risk factors set forth in the SEC Reports. |
| --- | --- |
| (f) | Certain<br> Transactions and Confidentiality. Other than consummating the transactions contemplated<br> hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to<br> any understanding with such Purchaser, directly or indirectly executed any purchases or sales,<br> including Short Sales, of the securities of the Company during the period commencing as of<br> the time that such Purchaser first received a term sheet (written or oral) from the Company<br> or any other Person representing the Company setting forth the material terms of the transactions<br> contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding<br> the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby<br> separate portfolio managers manage separate portions of such Purchaser’s assets and<br> the portfolio managers have no direct knowledge of the investment decisions made by the portfolio<br> managers managing other portions of such Purchaser’s assets, the representation set<br> forth above shall only apply with respect to the portion of assets managed by the portfolio<br> manager that made the investment decision to purchase the Securities covered by this Agreement.<br> Other than to other Persons party to this Agreement or to such Purchaser’s representatives,<br> including, without limitation, its officers, directors, partners, legal and other advisors,<br> employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all<br> disclosures made to it in connection with this transaction (including the existence and terms<br> of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing<br> contained herein shall constitute a representation or warranty, or preclude any actions,<br> with respect to locating or borrowing shares in order to effect Short Sales or similar transactions<br> in the future. |
| --- | --- |
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| (g) | No<br> Voting Agreements. The Purchaser is not a party to any agreement or arrangement, whether<br> written or oral, between the Purchaser and any other Purchaser and any of the Company’s<br> stockholders as of the date hereof, regulating the management of the Company, the stockholders’<br> rights in the Company, the transfer of shares in the Company, including any voting agreements,<br> stockholder agreements or any other similar agreement, even if its title is different or<br> has any other relations or agreements with any of the Company’s stockholders, directors<br> or officers. |
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| (h) | Brokers.<br> Except as set forth in the Prospectus, no agent, broker, investment banker, person or firm<br> acting in a similar capacity on behalf of or under the authority of the Purchaser is or will<br> be entitled to any broker’s or finder’s fee or any other commission or similar<br> fee, directly or indirectly, for which the Company or any of its Affiliates after the Closing<br> could have any liabilities in connection with this Agreement, any of the transactions contemplated<br> by this Agreement, or on account of any action taken by the Purchaser in connection with<br> the transactions contemplated by this Agreement. |
| --- | --- |
| (i) | Independent<br> Advice. Each Purchaser understands that nothing in this Agreement or any other materials<br> presented by or on behalf of the Company to the Purchaser in connection with the purchase<br> of the Securities constitutes legal, tax or investment advice. |
| --- | --- |
| (j) | Purchaser<br> Status. At the time such Purchaser was offered the Securities, it was, and as of the<br> date hereof it is, and on each date on which it exercises any Pre-Funded Warrants, it will<br> be either (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2),<br> (a)(3), (a)(7), (a)(8), (a)(9), (a)(12) or (a)(13) under the Securities Act, or (ii) a “qualified<br> institutional buyer” as defined in Rule 144A(a) under the Securities Act. |
| --- | --- |
| (k) | Hart-Scott-Rodino<br> Act. Each Purchaser has determined, in good faith and in accordance with 16 C.F.R. §<br> 801.10(c)(3), that the fair market value of the voting securities of the Company already<br> held by such Purchaser, together with the purchase price of the Shares to be acquired by<br> such Purchaser, is not greater than $119.5 million. |
| --- | --- |
The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document, or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
ARTICLE 4. OTHER AGREEMENTS OF THE PARTIES
| 4.1 | Legends.<br> The Shares and Warrant Shares shall be issued free of legends. |
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| 4.2 | Furnishing<br> of Information; Public Information. Until the earlier of the date the Purchaser owns<br> no Shares or one year after the Closing Date, the Company covenants to use commercially reasonable<br> efforts to maintain the registration of the Common Stock under Section 12(b) or 12(g) of<br> the Exchange Act and to timely file (or obtain extensions in respect thereof and file within<br> the applicable grace period) all reports required to be filed by the Company after the date<br> hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting<br> requirements of the Exchange Act. |
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| 4.3 | Integration.<br> The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate<br> in respect of any security (as defined in Section 2 of the Securities Act) that would be<br> integrated with the offer or sale of the Securities for purposes of the rules and regulations<br> of any Trading Market such that it would require shareholder approval prior to the closing<br> of such other transaction unless shareholder approval is obtained before the closing of such<br> subsequent transaction. |
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| 4.4 | Securities<br> Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press<br> release disclosing the material terms of the transactions contemplated hereby, and (b) file<br> a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with<br> the Commission within the time required by the Exchange Act. From and after the issuance<br> of such press release, the Company represents to the Purchasers that it shall have publicly<br> disclosed all material, non-public information delivered to any of the Purchasers by the<br> Company or any of its Subsidiaries, or any of their authorized officers, directors, employees<br> or agents in connection with the transactions contemplated by the Transaction Documents.<br> In addition, effective upon the issuance of such press release, the Company acknowledges<br> and agrees that any and all confidentiality or similar obligations under any agreement, whether<br> written or oral, between the Company, any of its Subsidiaries or any of their respective<br> officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers<br> or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser<br> shall consult with each other in issuing any other press releases with respect to the transactions<br> contemplated hereby, and neither the Company nor any Purchaser shall issue any such press<br> release nor otherwise make any such public statement without the prior consent of the Company,<br> with respect to any press release of any Purchaser, or without the prior consent of each<br> Purchaser, with respect to any press release of the Company, which consent shall not unreasonably<br> be withheld or delayed, except if such disclosure is required by law, in which case the disclosing<br> party shall promptly provide the other party with prior notice of such public statement or<br> communication. Notwithstanding the foregoing, the Company shall not publicly disclose the<br> name of any Purchaser, or include the name of any Purchaser in any filing with the Commission<br> or any regulatory agency or Trading Market, without the prior written consent of such Purchaser<br> (not to be unreasonably withheld), except (a) as required by federal securities law in connection<br> with (i) any registration statement contemplated by this Agreement and (ii) the filing of<br> final Transaction Documents with the Commission and (b) to the extent such disclosure is<br> required by law or Trading Market regulations, in which case the Company shall provide the<br> Purchasers with prior notice of such disclosure permitted under this clause (b). |
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| 4.5 | Shareholder<br> Rights Plan. No claim will be made or enforced by the Company or, with the consent of<br> the Company, any other Person, that any Purchaser is an “Acquiring Person”<br> under any control share acquisition, business combination, poison pill (including any distribution<br> under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter<br> adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of<br> any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents<br> or under any other agreement between the Company and the Purchasers. |
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| 4.6 | Non-Public<br> Information. Except with respect to the material terms and conditions of the transactions<br> contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.4,<br> the Company covenants and agrees that neither it, nor any other Person acting on its behalf<br> will provide any Purchaser or its agents or counsel with any information that constitutes,<br> or the Company reasonably believes constitutes, material non-public information, unless prior<br> thereto such Purchaser shall have consented to the receipt of such information and agreed<br> with the Company to keep such information confidential. The Company understands and confirms<br> that each Purchaser shall be relying on the foregoing covenant in effecting transactions<br> in securities of the Company. To the extent that the Company delivers any material, non-public<br> information to a Purchaser without such Purchaser’s consent, the Company hereby covenants<br> and agrees that such Purchaser shall not have any duty of confidentiality to the Company,<br> any of its Subsidiaries, or any of their respective officers, directors, agents, employees<br> or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective<br> officers, directors, agents, employees or Affiliates not to trade on the basis of, such material,<br> non-public information, provided that the Purchaser shall remain subject to applicable law.<br> To the extent that any notice provided pursuant to any Transaction Document constitutes,<br> or contains, material, non-public information regarding the Company or any Subsidiaries,<br> the Company shall promptly with the delivery of such notice file such material non-public<br> information with the Commission pursuant to a Current Report on Form 8-K. The Company understands<br> and confirms that each Purchaser shall be relying on the foregoing covenant in effecting<br> transactions in securities of the Company. |
| --- | --- |
| 4.7 | Use<br> of Proceeds. Except as set forth in the SEC Reports, the Company shall use the net proceeds<br> from the sale of the Securities hereunder for working capital purposes and shall not use<br> such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other<br> than payment of trade payables in the ordinary course of the Company’s business and<br> prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents,<br> (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC<br> regulations. |
| --- | --- |
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| 4.8 | Indemnification<br> of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify<br> and hold each Purchaser and its directors, officers, shareholders, members, partners, employees<br> and agents (and any other Persons with a functionally equivalent role of a Person holding<br> such titles notwithstanding a lack of such title or any other title), each Person who controls<br> such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of<br> the Exchange Act), and the directors, officers, shareholders, agents, members, partners or<br> employees (and any other Persons with a functionally equivalent role of a Person holding<br> such titles notwithstanding a lack of such title or any other title) of such controlling<br> persons (each, a “Purchaser Party”) harmless from any and all losses,<br> liabilities, obligations, claims, contingencies, damages, costs and expenses, including all<br> judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees<br> and costs of investigation that any such Purchaser Party may suffer or incur as a result<br> of or relating to (a) any breach of any of the representations, warranties, covenants or<br> agreements made by the Company in this Agreement or in the other Transaction Documents or<br> (b) any action instituted against the Purchaser Parties in any capacity, or any of them or<br> their respective Affiliates, by any stockholder of the Company who is not an Affiliate of<br> such Purchaser Party, with respect to any of the transactions contemplated by the Transaction<br> Documents (unless such action is solely based upon a material breach of such Purchaser Party’s<br> representations, warranties or covenants under the Transaction Documents or any agreements<br> or understandings such Purchaser Party may have with any such stockholder or any violations<br> by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser<br> Party which is finally judicially determined to constitute fraud, gross negligence or willful<br> misconduct). If any action shall be brought against any Purchaser Party in respect of which<br> indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify<br> the Company in writing, and the Company shall have the right to assume the defense thereof<br> with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser<br> Party shall have the right to employ separate counsel in any such action and participate<br> in the defense thereof, but the fees and expenses of such counsel shall be at the expense<br> of such Purchaser Party except to the extent that (i) the employment thereof has been specifically<br> authorized by the Company in writing, (ii) the Company has failed after a reasonable period<br> of time to assume such defense and to employ counsel or (iii) in such action there is, in<br> the reasonable opinion of counsel, a material conflict on any material issue between the<br> position of the Company and the position of such Purchaser Party, in which case the Company<br> shall be responsible for the reasonable fees and expenses of no more than one such separate<br> counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for<br> any settlement by a Purchaser Party effected without the Company’s prior written consent,<br> which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the<br> extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s<br> breach of any of the representations, warranties, covenants or agreements made by such Purchaser<br> Party in this Agreement or in the other Transaction Documents or the fraud, gross negligence<br> or willful misconduct of such Purchaser Party as determined by a final, non-appealable judgment<br> of a court of competent jurisdiction. The indemnification required by this Section 4.8 shall<br> be made by periodic payments of the amount thereof during the course of the investigation<br> or defense, as and when bills are received or are incurred; provided, however, that if it<br> is subsequently determined by a final, non-appealable judgment of a court of competent jurisdiction<br> that a Purchaser Party was not entitled to receive such periodic payments, such Purchaser<br> Party shall, within five (5) Business Days of such judgment, return such payments to the<br> Company. The indemnity agreements contained herein shall be in addition to any cause of action<br> or similar right of any Purchaser Party against the Company or others and any liabilities<br> the Company may be subject to pursuant to law. |
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| 4.9 | Reservation<br> of Common Stock. As of the date hereof, the Company has reserved and the Company shall<br> continue to reserve and keep available at all times, free of preemptive rights, a sufficient<br> number of shares of Common Stock for the purpose of enabling the Company to issue the Shares<br> and Warrant Shares pursuant to this Agreement. |
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| 4.10 | Listing<br> of Common Stock. The Company hereby agrees to use commercially reasonable best efforts<br> to maintain the listing or quotation of the Common Stock on the Trading Market on which it<br> is currently listed, and concurrently with the Closing, the Company shall apply to list or<br> quote all of the Shares on such Trading Market and promptly secure the listing of all of<br> the Shares on such Trading Market prior to Closing. The Company further agrees, if the Company<br> applies to have the Common Stock traded on any other Trading Market, it will then include<br> in such application all of the Shares and will take such other action as is necessary to<br> cause all of the Shares to be listed or quoted on such other Trading Market as promptly as<br> possible. The Company will then take all action reasonably necessary to continue the listing<br> and trading of its Common Stock on a Trading Market and will comply in all respects with<br> the Company’s reporting, filing and other obligations under the bylaws or rules of<br> the Trading Market. For so long as the Company maintains a listing or quotation of the Common<br> Stock on a Trading Market, the Company agrees to use commercially reasonable efforts to maintain<br> the eligibility of the Common Stock for electronic transfer through the Depository Trust<br> Company or another established clearing corporation, including, without limitation, by timely<br> payment of fees to the Depository Trust Company or such other established clearing corporation<br> in connection with such electronic transfer. |
| --- | --- |
| 4.11 | Subsequent<br> Equity Sales. |
| --- | --- |
| (a) | From<br> the date hereof until ninety (90) days following the Closing Date, neither the Company nor<br> any Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance<br> or proposed issuance of any Common Stock or Common Stock Equivalents or (ii) file any registration<br> statement or any amendment or supplement thereto, other than the Prospectus Supplement, any<br> necessary filing for an Exempt Issuance under applicable law, a registration statement on<br> Form S-8 with respect to a shareholder approved equity incentive plan or file any amendment<br> or supplement to any existing registration statement solely for the purpose of revising any<br> required disclosure in such registration statement and not for the purpose of increasing<br> the offering size pursuant to such registration statement; provided, however, that the foregoing<br> shall not prohibit the Company from conducting an offering of shares of Common Stock (and<br> not Common Stock Equivalents) at a price per share equal to or greater than $2.00 (as adjusted<br> for any stock splits, stock dividends, stock combinations, recapitalizations or other similar<br> transactions occurring after the date hereof) or filing any registration statement or amendment<br> or supplement thereto in connection with any such offering; provided, further, that the Company<br> shall offer the Placement Agent the opportunity to participate in any such offering as a<br> co-placement agent on customary terms. |
| --- | --- |
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| (b) | From<br> the date hereof until one hundred and eighty (180) days after the Closing Date, the Company<br> shall be prohibited from effecting or entering into an agreement to effect any issuance by<br> the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a<br> combination of units thereof) involving a Variable Rate Transaction. “Variable Rate<br> Transaction” means a transaction in which the Company (i) issues or sells any debt<br> or equity securities that are convertible into, exchangeable or exercisable for, or include<br> the right to receive additional shares of Common Stock either (A) at a conversion price,<br> exercise price or exchange rate or other price that is based upon and/or varies with the<br> trading prices of or quotations for the shares of Common Stock at any time after the initial<br> issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange<br> price that is subject to being reset at some future date after the initial issuance of such<br> debt or equity security or upon the occurrence of specified or contingent events directly<br> or indirectly related to the business of the Company or the market for the Common Stock or<br> (ii) enters into, or effects a transaction under, any agreement, including, but not limited<br> to, an equity line of credit or an “at-the-market offering”, whereby the Company<br> may issue securities at a future determined price regardless of whether shares pursuant to<br> such agreement have actually been issued and regardless of whether such agreement is subsequently<br> canceled; provided, however, that the issuance of shares of Common Stock in an “at-the-market”<br> offering shall not be deemed a Variable Rate Transaction after thirty (30) days after the<br> Closing Date. Any Purchaser shall be entitled to obtain injunctive relief against the Company<br> to preclude any such issuance, which remedy shall be in addition to any right to collect<br> damages. |
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| (c) | Notwithstanding<br> the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance. |
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| 4.12 | Equal<br> Treatment of Purchasers. No consideration (including any modification of any Transaction<br> Document) shall be offered or paid to any Person to amend or consent to a waiver or modification<br> of any provision of the Transaction Documents unless the same consideration is also offered<br> to all of the parties to the Transaction Documents. For clarification purposes, this provision<br> constitutes a separate right granted to each Purchaser by the Company and negotiated separately<br> by each Purchaser, and is intended for the Company to treat the Purchasers as a class and<br> shall not in any way be construed as the Purchasers acting in concert or as a group with<br> respect to the purchase, disposition or voting of Securities or otherwise. |
| --- | --- |
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| 4.13 | Certain<br> Transactions and Confidentiality. Each Purchaser, severally and not jointly with the<br> other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant<br> to any understanding with it will execute any purchases or sales, including Short Sales,<br> of any of the Company’s securities during the period commencing with the execution<br> of this Agreement and ending at such time that the transactions contemplated by this Agreement<br> are first publicly announced pursuant to the initial press release as described in Section<br> 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that<br> until such time as the transactions contemplated by this Agreement are publicly disclosed<br> by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser<br> will maintain the confidentiality of the existence and terms of this transaction and the<br> information included in the Disclosure Schedules. Notwithstanding the foregoing and notwithstanding<br> anything contained in this Agreement to the contrary, the Company expressly acknowledges<br> and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that<br> it will not engage in effecting transactions in any securities of the Company after the time<br> that the transactions contemplated by this Agreement are first publicly announced pursuant<br> to the initial press release as described in Section 4.4, (ii) no Purchaser shall be<br> restricted or prohibited from effecting any transactions in any securities of the Company<br> in accordance with applicable securities laws from and after the time that the transactions<br> contemplated by this Agreement are first publicly announced pursuant to the initial press<br> release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality<br> or duty not to trade in the securities of the Company to the Company or its Subsidiaries<br> after the issuance of the initial press release as described in Section 4.4. Notwithstanding<br> the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby<br> separate portfolio managers manage separate portions of such Purchaser’s assets and<br> the portfolio managers have no direct knowledge of the investment decisions made by the portfolio<br> managers managing other portions of such Purchaser’s assets, the covenant set forth<br> above shall only apply with respect to the portion of assets managed by the portfolio manager<br> that made the investment decision to purchase the Securities covered by this Agreement. |
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| 4.14 | Exercise<br> Procedures. The form of Notice of Exercise included in the Warrants set forth the totality<br> of the procedures required of the Purchasers in order to exercise the Warrants. No additional<br> legal opinion, other information or instructions shall be required of the Purchasers to exercise<br> their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise<br> shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)<br> of any Notice of Exercise form be required in order to exercise the Warrants. The Company<br> shall honor exercises of the Warrants and shall deliver shares of Common Stock and/or Warrant<br> Shares in accordance with the terms, conditions and time periods set forth in the Transaction<br> Documents. |
| --- | --- |
| 4.15 | Reservations<br> of Shares. As of the date hereof, the Company has reserved and the Company shall continue<br> to reserve and keep available at all times, free of preemptive rights, a sufficient number<br> of shares of Common Stock for the purpose of enabling the Company to issue shares of Common<br> Stock pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants. |
| --- | --- |
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| 4.16 | Lock-Up<br> Agreements. The Company shall not amend, modify, waive or terminate any provision of<br> any of the Lock-Up Agreements without the prior written consent of the Placement Agent (not<br> to be unreasonably withheld, conditioned or delayed), except to extend the term of the lock-up<br> period, and shall use commercially reasonable efforts to enforce the provisions of each Lock-Up<br> Agreement in accordance with its terms. If any party to a Lock-Up Agreement breaches any<br> provision of a Lock-Up Agreement, the Company shall promptly use its commercially reasonable<br> efforts to seek specific performance of the terms of such Lock-Up Agreement. |
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ARTICLE 5. MISCELLANEOUS
| 5.1 | Termination.<br> This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations<br> hereunder only and without any effect whatsoever on the obligations between the Company and<br> the other Purchasers, by written notice to the other parties, if the Closing has not been<br> consummated on or before the fifth (5th) Trading Day following the date hereof; provided,<br> however, that no such termination will affect the right of any party to sue for any breach<br> by any other party (or parties). |
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| 5.2 | Fees<br> and Expenses. Except as expressly set forth in the Transaction Documents to the contrary,<br> each party shall pay the fees and expenses of its advisers, counsel, accountants and other<br> experts, if any, and all other expenses incurred by such party incident to the negotiation,<br> preparation, execution, delivery and performance of this Agreement. The Company shall pay<br> all Transfer Agent fees (including, without limitation, any fees required for same-day processing<br> of any instruction letter delivered by the Company and any exercise notice delivered by a<br> Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery<br> of any Securities to the Purchasers. |
| --- | --- |
| 5.3 | Entire<br> Agreement. The Transaction Documents, together with the exhibits and schedules thereto,<br> contain the entire understanding of the parties with respect to the subject matter hereof<br> and thereof and supersede all prior agreements and understandings, oral or written, with<br> respect to such matters, which the parties acknowledge have been merged into such documents,<br> exhibits and schedules. |
| --- | --- |
| 5.4 | Notices.<br> Any and all notices or other communications or deliveries required or permitted to be provided<br> hereunder shall be in writing and shall be deemed given and effective on the earliest of:<br> (a) the time of transmission, if such notice or communication is delivered via facsimile<br> at the facsimile number or email attachment at the email address as set forth on the signature<br> pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b)<br> the next Trading Day after the time of transmission, if such notice or communication is delivered<br> via facsimile at the facsimile number or email attachment at the email address as set forth<br> on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30<br> p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following<br> the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon<br> actual receipt by the party to whom such notice is required to be given. The address for<br> such notices and communications shall be as set forth on the signature pages attached hereto.<br> To the extent that any notice provided pursuant to any Transaction Document constitutes,<br> or contains material, non-public information regarding the Company or any of the Subsidiaries,<br> the Company shall promptly with the delivery of such notice file such material non-public<br> information with the Commission pursuant to a Current Report on Form 8-K. |
| --- | --- |
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| 5.5 | Amendments;<br> Waivers. No provision of this Agreement may be waived, modified, supplemented or amended<br> except in a written instrument signed, in the case of an amendment, by the Company and Purchasers<br> which purchased at least 50.1% in interest of the sum of the (x) Shares and (y) the Pre-Funded<br> Warrant Shares initially issuable upon exercise of the Pre-Funded Warrants based on the initial<br> Subscription Amounts hereunder (or, prior to the Closing Date, the Company and each Purchaser)<br> or, in the case of a waiver, by the party against whom enforcement of any such waived provision<br> is sought, provided that if any amendment, modification or waiver disproportionately and<br> adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately<br> impacted Purchaser (or at least 50.1% in interest of such disproportionately impacted Purchasers)<br> shall also be required. No waiver of any default with respect to any provision, condition<br> or requirement of this Agreement shall be deemed to be a continuing waiver in the future<br> or a waiver of any subsequent default or a waiver of any other provision, condition or requirement<br> hereof, nor shall any delay or omission of any party to exercise any right hereunder in any<br> manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately,<br> materially and adversely affects the rights and obligations of any Purchaser relative to<br> the comparable rights and obligations of the other Purchasers shall require the prior written<br> consent of such adversely affected Purchaser. Any amendment effected in accordance with this<br> Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company. |
|---|---|
| 5.6 | Headings.<br> The headings herein are for convenience only, do not constitute a part of this Agreement<br> and shall not be deemed to limit or affect any of the provisions hereof. |
| --- | --- |
| 5.7 | Successors<br> and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties<br> and their successors and permitted assigns. The Company may not assign this Agreement or<br> any rights or obligations hereunder without the prior written consent of each Purchaser (other<br> than by merger). Any Purchaser may assign any or all of its rights under this Agreement to<br> any Person to whom such Purchaser assigns or transfers any Securities, provided that such<br> transferee agrees in writing to be bound, with respect to the transferred Securities, by<br> the provisions of the Transaction Documents that apply to the “Purchasers.” |
| --- | --- |
| 5.8 | No<br> Third-Party Beneficiaries. The Placement Agent shall be the third-party beneficiary of<br> the representations and warranties of the Company in Section 3.1 and the representations<br> and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit<br> of the parties hereto and their respective successors and permitted assigns and is not for<br> the benefit of, nor may any provision hereof be enforced by, any other Person, except as<br> otherwise set forth in Section 4.8 and this Section 5.8. |
| --- | --- |
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| 5.9 | Governing<br> Law. All questions concerning the construction, validity, enforcement and interpretation<br> of the Transaction Documents shall be governed by and construed and enforced in accordance<br> with the internal laws of the State of New York, without regard to the principles of conflicts<br> of law thereof. Each party agrees that all legal Proceedings concerning the interpretations,<br> enforcement and defense of the transactions contemplated by this Agreement and any other<br> Transaction Documents (whether brought against a party hereto or its respective affiliates,<br> directors, officers, shareholders, partners, members, employees or agents) shall be commenced<br> exclusively in the state and federal courts sitting in the City of New York. Each party hereby<br> irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting<br> in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder<br> or in connection herewith or with any transaction contemplated hereby or discussed herein<br> (including with respect to the enforcement of any of the Transaction Documents), and hereby<br> irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that<br> it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding<br> is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably<br> waives personal service of process and consents to process being served in any such Action<br> or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery<br> (with evidence of delivery) to such party at the address in effect for notices to it under<br> this Agreement and agrees that such service shall constitute good and sufficient service<br> of process and notice thereof. Nothing contained herein shall be deemed to limit in any way<br> any right to serve process in any other manner permitted by law. If any party shall commence<br> an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in<br> addition to the obligations of the Company under Section 4.8, the prevailing party in such<br> Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’<br> fees and other costs and expenses incurred with the investigation, preparation and prosecution<br> of such Action or Proceeding. |
|---|---|
| 5.10 | Survival.<br> The representations and warranties contained herein shall survive the Closing and the delivery<br> of the Securities for the applicable statute of limitations. |
| --- | --- |
| 5.11 | Execution.<br> This Agreement may be executed in two or more counterparts, all of which when taken together<br> shall be considered one and the same agreement and shall become effective when counterparts<br> have been signed by each party and delivered to each other party, it being understood that<br> the parties need not sign the same counterpart. In the event that any signature is delivered<br> by facsimile transmission or by e-mail delivery of a “.pdf” format data file,<br> by other electronic signing created on an electronic platform (such as DocuSign) or by digital<br> signing (such as Adobe Sign), such signature shall create a valid and binding obligation<br> of the party executing (or on whose behalf such signature is executed) with the same force<br> and effect as if such facsimile or “.pdf” or other electronic or digital signature<br> page were an original thereof. |
| --- | --- |
| 5.12 | Severability.<br> If any term, provision, covenant or restriction of this Agreement is held by a court of competent<br> jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions,<br> covenants and restrictions set forth herein shall remain in full force and effect and shall<br> in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially<br> reasonable efforts to find and employ an alternative means to achieve the same or substantially<br> the same result as that contemplated by such term, provision, covenant or restriction. It<br> is hereby stipulated and declared to be the intention of the parties that they would have<br> executed the remaining terms, provisions, covenants and restrictions without including any<br> of such that may be hereafter declared invalid, illegal, void or unenforceable. |
| --- | --- |
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| 5.13 | Rescission<br> and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without<br> limiting any similar provisions of) any of the other Transaction Documents, whenever any<br> Purchaser exercises a right, election, demand or option under a Transaction Document and<br> the Company does not timely perform its related obligations within the periods therein provided,<br> then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon<br> written notice to the Company, any relevant notice, demand or election in whole or in part<br> without prejudice to its future actions and rights, unless such rescission or withdrawal<br> would materially prejudice the Company. |
|---|---|
| 5.14 | Replacement<br> of Securities. If any certificate or instrument evidencing any Securities is mutilated,<br> lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and<br> substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of<br> and substitution therefor, a new certificate or instrument, but only upon receipt of evidence<br> reasonably satisfactory to the Company of such loss, theft or destruction. The applicant<br> for a new certificate or instrument under such circumstances shall also pay any reasonable<br> third-party costs (including customary indemnity) associated with the issuance of such replacement<br> Securities. |
| --- | --- |
| 5.15 | Remedies.<br> In addition to being entitled to exercise all rights provided herein or granted by law, including<br> recovery of damages, each of the Purchasers and the Company will be entitled to specific<br> performance under the Transaction Documents. The parties agree that monetary damages may<br> not be adequate compensation for any loss incurred by reason of any breach of obligations<br> contained in the Transaction Documents and hereby agree to waive and not to assert in any<br> Action for specific performance of any such obligation the defense that a remedy at law would<br> be adequate. |
| --- | --- |
| 5.16 | Payment<br> Set Aside. To the extent that the Company makes a payment or payments to any Purchaser<br> pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder,<br> and such payment or payments or the proceeds of such enforcement or exercise or any part<br> thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside,<br> recovered from, disgorged by or are required to be refunded, repaid or otherwise restored<br> to the Company, a trustee, receiver or any other Person under any law (including, without<br> limitation, any bankruptcy law, state or federal law, common law or equitable cause of action),<br> then to the extent of any such restoration the obligation or part thereof originally intended<br> to be satisfied shall be revived and continued in full force and effect as if such payment<br> had not been made or such enforcement or setoff had not occurred. |
| --- | --- |
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| 5.17 | Independent<br> Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser<br> under any Transaction Document are several and not joint with the obligations of any other<br> Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance<br> of the obligations of any other Purchaser under any Transaction Document. Nothing contained<br> herein or in any other Transaction Document, and no action taken by any Purchaser pursuant<br> hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,<br> a joint venture or any other kind of entity, or create a presumption that the Purchasers<br> are in any way acting in concert or as a group with respect to such obligations or the transactions<br> contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently<br> protect and enforce its rights including, without limitation, the rights arising out of this<br> Agreement or out of the other Transaction Documents, and it shall not be necessary for any<br> other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each<br> Purchaser has been represented by its own separate legal counsel in its review and negotiation<br> of the Transaction Documents. For reasons of administrative convenience only, each Purchaser<br> and its respective counsel have chosen to communicate with the Company through the legal<br> counsel to the Placement Agent. The legal counsel of the Placement Agent does not represent<br> any of the Purchasers and only represents the Placement Agent. The Company has elected to<br> provide all Purchasers with the same terms and Transaction Documents for the convenience<br> of the Company and not because it was required or requested to do so by any of the Purchasers.<br> It is expressly understood and agreed that each provision contained in this Agreement and<br> in each other Transaction Document is between the Company and a Purchaser, solely, and not<br> between the Company and the Purchasers collectively and not between and among the Purchasers. |
|---|---|
| 5.18 | Liquidated<br> Damages. The Company’s obligations to pay any partial liquidated damages or other<br> amounts owing under the Transaction Documents is a continuing obligation of the Company and<br> shall not terminate until all unpaid partial liquidated damages and other amounts have been<br> paid notwithstanding the fact that the instrument or security pursuant to which such partial<br> liquidated damages or other amounts are due and payable shall have been canceled. |
| --- | --- |
| 5.19 | Saturdays,<br> Sundays, Holidays, etc. If the last or appointed day for the taking of any action or<br> the expiration of any right required or granted herein shall not be a Business Day, then<br> such action may be taken or such right may be exercised on the next succeeding Business Day. |
| --- | --- |
| 5.20 | Construction.<br> The parties agree that each of them and/or their respective counsel have reviewed and had<br> an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction<br> to the effect that any ambiguities are to be resolved against the drafting party shall not<br> be employed in the interpretation of the Transaction Documents or any amendments thereto.<br> In addition, each and every reference to share prices and shares of Common Stock in any Transaction<br> Document shall be subject to adjustment for reverse and forward stock splits, stock dividends,<br> stock combinations and other similar transactions of the Common Stock that occur after the<br> date of this Agreement. |
| --- | --- |
| 5.21 | WAIVER<br> OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY<br> PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST<br> EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY<br> WAIVES FOREVER TRIAL BY JURY. |
| --- | --- |
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| OS Therapies Incorporated | Address<br> for Notice: | |
|---|---|---|
| By: | Email:<br> par@ostherapies.com | |
| Name: | Paul A. Romness, MPH | |
| Title: | President and Chief Executive Officer |
With a copy to (which shall not constitute notice):
Olshan Frome Wolosky LLP
1325 Avenue of the Americas, 15^th^ Floor
New York, NY 10019
Attn.: Spencer G. Feldman, Esq.
[Remainderof page intentionally left blank;signature page for Purchaser follows.]
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[PURCHASER SIGNATURE PAGE TO OSTX SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| Name<br> of Purchaser: |
|---|
| Signature of Authorized Signatory of Purchaser: |
| Name<br> of Authorized Signatory: |
| Title<br> of Authorized Signatory: |
| Email<br> Address of Authorized Signatory: |
| Address<br> for Notice to Purchaser: |
Address for Delivery of Securities to Purchaser (if not same as address for notice):
DWAC for Shares: ____________________
Subscription Amount: $_________________
Shares: _________________
Common Warrant Shares: ____________ Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
EIN Number: _________________
40
[PURCHASER SIGNATURE PAGE TO OSTX SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| Name<br> of Purchaser: |
|---|
| Signature of Authorized Signatory of Purchaser: |
| Name<br> of Authorized Signatory: |
| Title<br> of Authorized Signatory: |
| Email<br> Address of Authorized Signatory: |
| Address<br> for Notice to Purchaser: |
Address for Delivery of Securities to Purchaser (if not same as address for notice):
DWAC for Shares: ____________________
Subscription Amount: $_________________
Pre-Funded Warrant Shares: ____________ Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
Common Warrant Shares: ______________ Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
EIN Number: _________________
41
ExhibitA
Form of Lock-Up Agreement
Lock-UpAgreement
___________, 2026
Ceros Financial Services, Inc.
1445 Research Boulevard
Rockville, Maryland 20850
Re:OS Therapies Incorporated—Proposed Offering
Ladies and Gentlemen:
The undersigned understands that you (“Ceros” or the “Placement Agent”) propose to enter into or have entered into a Placement Agency Agreement (the “Placement Agency Agreement”) providing for the offer and sale (the “Offering”) of (i) shares of common stock, par value $0.001 per share (the “CommonStock”), of OS Therapies Incorporated, a Delaware corporation (the “Company”), and (ii) warrants to purchase shares of Common Stock (the “Common Warrants” and, together with the Common Stock, the “Securities”).
In consideration of the execution of the Placement Agency Agreement by Ceros, and for other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the prior written consent of Ceros, the undersigned will not, directly or indirectly, (a) offer for sale, sell, pledge, or otherwise transfer or dispose of (or enter into any transaction that is designed to, or could reasonably be expected to, result in the transfer or disposition by any person at any time in the future of) any shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and shares of Common Stock that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for Common Stock; (b) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise; (c) except as provided for below, make any demand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or any other securities of the Company; or (d) publicly disclose the intention to do any of the foregoing for a period commencing on the date hereof and ending on the earlier of (i) ninety (90) days following the closing of the Offering, and (ii) the date on which the Company publicly announces that the U.S. Food and Drug Administration has accepted for filing (i.e., accepted for substantive review) its Biologics License Application for OST-HER2 (such period, the “Lock-Up Period”).
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The foregoing paragraph shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in the open market after the completion of the Offering, provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with such transactions; (b) bona fide gifts of shares of Common Stock or any security convertible into Common Stock, in each case that are made exclusively between and among the undersigned or members of the undersigned’s family, or affiliates of the undersigned, including its partners (if a partnership) or members (if a limited liability company); (c) any transfer of shares of Common Stock or any security convertible into Common Stock by will or intestate succession upon the death of the undersigned; (d) transfer of shares of Common Stock or any security convertible into Common Stock to an immediate family member (for purposes of this Lock-Up Letter Agreement, “immediatefamily” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin) or any trust, limited partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or any immediate family member of the undersigned; provided that, in the case of clauses (b), (c) and (d) above, it shall be a condition to any such transfer that (i) the transferee/donee agrees to be bound by the terms of this Lock-Up Letter Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the same extent as if the transferee/donee were a party hereto; (ii) each party (donor, donee, transferor or transferee) shall not be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Exchange Act) to make, and shall agree to not voluntarily make, any filing or public announcement of the transfer or disposition prior to the expiration of the Lock-Up Period; and (iii) the undersigned notifies Ceros at least two (2) business days prior to the proposed transfer or disposition; (e) the transfer of shares to the Company to satisfy withholding obligations for any equity award granted pursuant to the terms of the Company’s stock option/incentive plans, such as upon exercise, vesting, lapse of substantial risk of forfeiture, or other similar taxable event, in each case on a “cashless” or “net exercise” basis (which, for the avoidance of doubt shall not include “cashless” exercise programs involving a broker or other third party), provided that as a condition of any transfer pursuant to this clause (e), that if the undersigned is required to file a report under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock during the Lock-Up Period, the undersigned shall include a statement in such report, and if applicable an appropriate disposition transaction code, to the effect that such transfer is being made as a share delivery or forfeiture in connection with a net value exercise, or as a forfeiture or sale of shares solely to cover required tax withholding, as the case may be; (f) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock pursuant to a bona fide third party tender offer made to all holders of the Common Stock, merger, consolidation or other similar transaction involving a change of control (as defined below) of the Company, including voting in favor of any such transaction or taking any other action in connection with such transaction, provided that in the event that such merger, tender offer or other transaction is not completed, the Common Stock and any security convertible into or exercisable or exchangeable for Common Stock shall remain subject to the restrictions set forth herein; (g) the vesting of equity awards, the exercise of warrants or the exercise of stock options granted pursuant to the Company’s stock option/incentive plans or otherwise outstanding on the date hereof; provided, that the restrictions shall apply to shares of Common Stock issued upon such vesting, exercise or conversion; (h) the establishment of any, or the continued use of any existing, contract, instruction or plan that satisfies all of the requirements of Rule 10b5-1 (a “Rule 10b5-1 Plan”) under the Exchange Act; provided, however, that except for already existing plans, no sales of Common Stock or securities convertible into, or exchangeable or exercisable for, Common Stock, shall be made pursuant to a Rule 10b5-1 Plan prior to the expiration of the Lock-Up Period; provided further, that the Company is not required to report the establishment of such Rule 10b5-1 Plan in any public report or filing with the Commission under the Exchange Act during the Lock-Up Period and does not otherwise voluntarily effect any such public filing or report regarding such Rule 10b5-1 Plan; and (i) any demands or requests for, exercise any right with respect to, or take any action in preparation of, the registration by the Company under the Securities Act of the undersigned’s shares of Common Stock, provided that no transfer of the undersigned’s shares of Common Stock registered pursuant to the exercise of any such right and no registration statement shall be filed under the Securities Act with respect to any of the undersigned’s shares of Common Stock during the Lock-Up Period. For purposes of clause (f) above, “change of control” shall mean the consummation of any bona fide third party tender offer, merger, purchase, 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.
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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 securities subject to this Lock-Up Letter Agreement except in compliance with this Lock-Up Letter Agreement.
It is understood that, if the Company notifies Ceros that it does not intend to proceed with the Offering, if the Placement Agency Agreement does not become effective, or if the Placement Agency Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares, the undersigned will be released from its obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and Ceros will proceed with the Offering in reliance on this Lock-Up Letter Agreement.
This Lock-Up Letter Agreement shall automatically terminate upon (a) the termination of the Placement Agency Agreement prior to the issuance and delivery of the Securities, (b) the date that either the Company or Ceros provides written notice to the other that it has determined not to proceed with the proposed Offering and, with respect to the Company, is terminating this Lock-Up Letter Agreement on behalf of all of the Company’s holders of securities subject to a Lock-Up Letter Agreement, provided that the Company and Ceros shall not have executed the Placement Agency Agreement on or prior to such date. Notwithstanding anything herein to the contrary, this Lock-Up Letter Agreement shall lapse and become null and void if the closing of the Offering shall not have occurred on or before April 17, 2026.
This Lock-Up Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof. Delivery of a signed copy of this Lock-Up Letter Agreement by facsimile or e-mail/.pdf transmission shall be effective as the delivery of the original hereof.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof. Any obligations of the undersigned shall be binding upon the heirs, personal representative, successors and assigns of the undersigned.
In order to enforce the obligations of the undersigned under this Lock-Up Letter Agreement, the Company shall impose irrevocable stop-transfer instructions preventing its transfer agent from effecting any actions in violation of this Lock-Up Letter Agreement
The undersigned acknowledges that the execution, delivery and performance of this Lock-Up Letter Agreement is a material inducement to each purchaser in the Offering to complete the transactions contemplated in connection with the Offering, and that the Company shall be entitled to specific performance of the undersigned’s obligations hereunder. The undersigned hereby represents that the undersigned has received adequate consideration for executing, delivering and performing this Lock-Up Letter Agreement, and that the undersigned will indirectly benefit from the closing of the transactions contemplated in connection with the Offering.
[Signaturepage follows]
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| Very truly yours, |
|---|
| (Name) |
| (Signature) |
| (Name of Signatory, in the case of entities – Please Print) |
| (Title of Signatory, in the case of entities – Please Print) |
| Address: |
45
ExhibitB
Formof Common Warrant
46
ExhibitC
Formof Pre-Funded Warrant
47
Exhibit 99.1
OS Therapies Completes$5.25M Registered Direct Offering Primarily with Pre-Existing High-Net-Worth Investors
| ● | Company expects approximately $2 million in non-dilutive VAT refunds from wholly owned U.K. subsidiary in 2Q-26 |
|---|---|
| ● | Company expects to receive approximately $2 million in non-dilutive R&D tax credits repayable to the company in cash from itsU.K. subsidiary in 2H-26 |
| --- | --- |
| ● | Offering net proceeds, together with funds expected to be received via U.K. subsidiary, expected to provide cash runway into 2027 |
| --- | --- |
| ● | Company expects to receive approvals in the U.S., U.K. and Europe for OST-HER2 in the prevention of delay of recurrent, fully resected,pulmonary metastatic osteosarcoma in the second half of 2026 |
| --- | --- |
New York, NY,April 2, 2026 – OS Therapies, Inc. (NYSE-A: OSTX) (“OS Therapies” or “the Company”), the world leader in gene-edited, listeria-based cancer immunotherapies, today announced it that it has completed a $5.25 million registered direct offering of common stock (or pre-funded warrants in lieu thereof) and warrants, with participation primarily from high-net-worth investors who have invested in several of the Company’s prior financing rounds. Each investor was issued either shares of common stock at a purchase price of $1.40 per share or, in lieu thereof, pre-funded warrants at a purchase price of $1.399 per pre-funded warrant, together with one warrant to purchase one share of common stock at an exercise price of $1.40 per share for each share of common stock issued or issuable upon exercise of the pre-funded warrants. Additional details related to the offering are included in the Company’s Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on April 2, 2026. Ceros Financial Services, Inc. acted as the exclusive placement agent for the offering.
Additionally, the Company announced that it expects to receive approximately $4 million in additional non-dilutive funds from VAT refunds and R&D reclaim funds via its wholly owned U.K. subsidiary that was established in 2025 for the purpose of conducting research & development.
“This capital raise, together with the non-dilutive funding we expect to receive from our U.K. subsidiary, is expected to support our operations as we advance toward crucial anticipated 2026 regulatory milestones for OST-HER2 in the U.S., U.K. and Europe, including early market access authorizations and potential eligibility for a Priority Review Voucher (PRV) under our Rare Pediatric Disease Designation (RPDD),” said Paul Romness, President & CEO of OS Therapies. “We are now focused on our upcoming regulatory interactions, including planned meetings later this quarter with the U.S. Food & Drug Administration (FDA), the European Medicines Agency (EMA), the U.K. Medicines and Healthcare products Regulatory Agency (MHRA) and the Australian Therapeutic Goods Administration (TGA) to review our clinical and biomarker data, as well as our proposed confirmatory Phase 3 trial design. We are hopeful these interactions will support market access for osteosarcoma patients beginning in 2027. This funding is also expected to support the initiation of a Phase 3 confirmatory trial, including the planned activation of an initial trial site in Australia, which is part of the requirements for a Biologics License Application (BLA) under the U.S. Accelerated Approval Program (Accelerated Approval) and for Conditional Marketing Authorisations (CMAs) in the U.K. and Europe.”
OST-HER2 has received Orphan Drug Designation (ODD), Fast Track Designation (FTD) and RPDD from the FDA, and ODD, FTD and ATMP from the EMA. Under the RPDD program, if the Company receives a BLA in the United States, it will become eligible to receive a PRV that it intends to sell, subject to market conditions. The most recent publicly disclosed PRV transaction occurred in February 2026 at a reported value of $205 million; however, there can be no assurance that the Company would realize a comparable value, if any, in connection with any future PRV sale. The Company is seeking to obtain a BLA under the Accelerated Approval Program for OST-HER2 in osteosarcoma in the second half of 2026.
The securities described above were offered pursuant to a “shelf” registration statement on Form S-3 (File No. 333-289443) filed by the Company with the SEC on August 8, 2025 and declared effective by the SEC on August 25, 2025. The offering was made only by means of a prospectus, including a prospectus supplement, forming a part of the effective registration statement. The prospectus supplement and the accompanying prospectus relating to the securities being offered were filed with the SEC and are available at the SEC’s website at www.sec.gov. Electronic copies of the prospectus supplement and the accompanying prospectus relating to the securities being offered may also be obtained by contacting Ceros Financial Services, Inc. at 1445 Research Boulevard, Rockville, Maryland 20850, or e-mail Ahmed Gheith, Managing Director at Ceros at agheith@cerosfs.com.
No Offer to Sell or Solicit
This press release is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or jurisdiction.
About OS Therapies
OS Therapies is a clinical stage oncology company focused on the identification, development, and commercialization of treatments for Osteosarcoma (OS) and other solid tumors. The Company is the world leader in listeria-based cancer immunotherapies. OST-HER2, the Company’s lead asset, is an immunotherapy leveraging the immune-stimulatory effects of Listeria bacteria to initiate a strong immune response targeting the HER2 protein. OST-HER2 has received Orphan Drug Designation (ODD), Fast Track Designation (FTD) and Rare Pediatric Disease Designation (RPDD) from the U.S. Food & Drug Administration and has received ODD, FTD and ATMP from the European Medicines Agency. The Company reported positive data in its Phase 2b clinical trial of OST-HER2 in recurrent, fully resected, lung metastatic osteosarcoma, demonstrating statistically significant benefit in the 12-month event free survival (EFS) primary endpoint of the study and the overall survival (OS) secondary endpoint. The Company anticipates receiving a Biologics License Application (BLA) from the U.S. FDA for OST-HER2 in osteosarcoma in 2026 and, if approved, would become eligible to receive a Priority Review Voucher that it could then sell. The Company also anticipates receiving Conditional Marketing Authorisations from the U.K.’s Medicines and Healthcare products Regulatory Agency and the EMA for OST-HER2 in 2026. OST-HER2 has completed a Phase 1 clinical study primarily in breast cancer patients, in addition to showing preclinical efficacy data in various models of breast cancer. OST-HER2 has been conditionally approved by the U.S. Department of Agriculture for the treatment of canines with osteosarcoma. The Company also anticipates reading out data from a Phase 1b study of OST-504 in castration resistant prostate cancer in the first half of 2026.
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In addition, OS Therapies is advancing its next-generation Antibody Drug Conjugate (ADC) and Drug Conjugates (DC), known as tunable ADC (tADC), which features tunable, tailored antibody-linker-payload candidates. This platform leverages the Company’s proprietary silicone Si-Linker and Conditionally Active Payload (CAP) technology, enabling the delivery of multiple payloads per linker. For more information, please visit www.ostherapies.com.
Forward-Looking Statements
Statements in this press release about future expectations, plans and prospects, as well as any other statements regarding matters that are not historical facts, may constitute forward-looking statements within the meaning of the federal securities laws. These forward-looking statements and terms such as “anticipate,” “expect,” “intend,” “may,” “will,” “should” or other comparable terms involve risks and uncertainties because they relate to events and depend on circumstances that will occur in the future. Those statements include statements regarding the intent, belief or current expectations of OS Therapies and members of its management, as well as the assumptions on which such statements are based. OS Therapies cautions readers that forward-looking statements are based on management’s expectations and assumptions as of the date of this press release and are subject to certain risks and uncertainties that could cause actual results to differ materially, including, but not limited to our expected to provide cash runway into 2027, the intended use of net proceeds from the offering, the potential approval of OST-HER2 by the U.S. FDA and other risks and uncertainties described in “Risk Factors” in the Company’s most recent Annual Report on Form 10-K and other subsequent documents the Company files with the Securities and Exchange Commission. Any forward-looking statements contained in this press release speak only as of the date hereof, and, except as required by the federal securities laws, OS Therapies specifically disclaims any obligation to update any forward-looking statement, whether as a result of new information, future events or otherwise.
**OS Therapies Contact Information:**Investor Relations
Harrison Seidner, PhD
WaterSeid Partners
OSTX@waterseid.com
Public Relations
Stephanie Chen
Elev8 New Media
media@ostherapies.com
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