Exhibit 10.2


 





PLACEMENT AGENCY AGREEMENT


 


November 30, 2022


 


H.C. Wainwright & Co., LLC


430 Park Avenue


New York, New York 10022


 


Ladies and Gentlemen:


 


Introduction. Subject
to the terms and conditions herein (this “Agreement”), CNS Pharmaceuticals, Inc., a Nevada corporation (the “Company”),
hereby agrees to sell up to an aggregate of $6,000,000of registered securities of the Company, including, but not limited to, 147,000
shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”),
common stock purchase warrants (the “Common Warrants”) to purchase up to an aggregate of 1,889,764 shares (the “Common
Warrant Shares”) of Common Stock and pre-funded warrants (the “Pre-Funded Warrants” and, together with the
Common Warrants, the “Warrants”) to purchase up to an aggregate of 1,742,764 shares (the “Prefunded Warrant
Shares” and, together with the Common Warrant Shares, the “Warrant Shares”, and the Warrant Shares, together
with the Warrants and the Shares, the “Securities”) of Common Stock directly to various investors (each, an “Investor”
and, collectively, the “Investors”) through H.C. Wainwright & Co, LLC (“Wainwright”) and Brookline
Capital Markets, LLC (the “Co-Agent” and together with Wainwright, the “Placement Agents”) as placement
agents. The documents executed and delivered by the Company and the Investors in connection with the Offering (as defined below), including,
without limitation, a securities purchase agreement (the “Purchase Agreement”), shall be collectively referred to herein
as the “Transaction Documents.” The purchase price to the Investors for each Share and accompanying Common Warrant
to purchase one share of Common Stock is $3.175, the purchase price to the Investors for each Pre-Funded Warrant to purchase one share
of Common Stock and accompanying Common Warrant to purchase one share of Common Stock is $3.174, the exercise price to the Investors for
each share of Common Stock issuable upon exercise of the Common Warrants is $3.03, and the exercise price to the Investors for each share
of Common Stock issuable upon exercise of the Pre-Funded Warrants is $0.001. The Placement Agents may retain other brokers or dealers
to act as sub-agents or selected-dealers on their behalf in connection with the Offering.


 


The Company hereby confirms
its agreement with the Placement Agents as follows:


 


Section 1.              Agreement to Act as Placement Agents.


 


(a)                On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and
conditions of this Agreement, the Placement Agents shall be the exclusive placement agents in connection with the offering and sale by
the Company of the Securities pursuant to the Company's registration statement on Form S-1 (File No. 333-267975) (the “Registration
Statement”), with the terms of such offering (the “Offering”) to be subject to market conditions and negotiations
between the Company, the Placement Agents and the prospective Investors. The Placement Agents will act on a reasonable best efforts basis
and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof,
in the prospective Offering. Under no circumstances will the Placement Agents or any of their “Affiliates” (as defined below)
be obligated to underwrite or purchase any of the Shares for their own account or otherwise provide any financing. The Placement Agents
shall act solely as the Company’s agents and not as principals. The Placement Agents shall have no authority to bind the Company
with respect to any prospective offer to purchase Shares and the Company shall have the sole right to accept offers to purchase Shares
and may reject any such offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and
delivery of, the Securities shall be made at one closing (the “Closing” and the date on which the Closing occurs, a
“Closing Date”). The Closing shall occur via “Delivery Versus Payment”, i.e., on the Closing Date, (i)
the Company shall issue the Shares directly to the account designated by the Placement Agents and, upon receipt of such Shares, the Placement
Agents shall electronically deliver such Shares to the applicable Investor and payment shall be made by the Placement Agents (or its’
clearing firm) by wire transfer to the Company and (ii) the Warrants shall be issued to the Investors in the denominations and in the
names designated by the Placement Agents simultaneously with the issuance of such Shares, subject to the satisfaction of the Placement
Agents. As compensation for services rendered, on the Closing Date, the Company shall pay to the Placement Agents the fees and expenses
set forth below:


 


(i)                 A cash fee equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering
(the “Closing”); 85% of which shall be payable to Wainwright and 15% of which shall be payable to the Co-Agent.


 


 






    	 	1	 



     


    







 


(ii)               Such number of Common Stock purchase warrants (the “Wainwright Warrants”) to Wainwright or its designees at
the Closing to purchase shares of Common Stock equal to 5.0% of the aggregate number of Shares (and shares of Common Stock issuable upon
the exercise of the Pre-Funded Warrants) sold in the Offering. The Wainwright Warrants shall have the same terms as the Common Warrants
except that the exercise price shall be 125% of the public offering price per share and shall have an expiration date of 5 years from
the effective date of the Registration Statement. The Wainwright Warrants shall not be transferable for six months from the date of the
Offering except as permitted by Financial Industry Regulatory Authority (“FINRA”) Rule 5110(e)(2).


 


(iii)              The Company also agrees to reimburse Wainwright’s expenses up to a maximum of (a) $50,000 for non-accountable expenses and
(b) up to $100,000 for fees and expenses of legal counsel and other out-of-pocket expenses; plus the additional amount payable by the
Company to Wainwright pursuant to the Engagement Letter (as defined below). The reimbursement shall be payable immediately upon (but
only in the event of) a Closing of the Offering.


 


(b)                The term of the Placement Agents’ exclusive engagement will be until the completion of the Offering (the “Exclusive
Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any time
upon 10 days written notice to the other parties. Notwithstanding anything to the contrary contained herein, the provisions concerning
confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification
provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned
and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed
under FINRA Rule 5110(f)(2)(D)(i), will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed
to limit the ability of the Placement Agents or their Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking,
financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means
any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with
a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities
Act”).


 


Section 2.             Representations, Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement
Agents as of the date hereof, and as of the Closing Date, as follows:


 


(a)                Securities Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”)
the Registration Statement under the Securities Act, which was filed on October 21, 2022 and declared effective on November 30, 2022 for
the registration of the Securities under the Securities Act. Following the determination of pricing among the Company and the prospective
Investors introduced to the Company by the Placement Agents, the Company will file with the Commission pursuant to Rules 430A and 424(b)
under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated
thereunder, a final prospectus relating to the placement of the Securities, their respective pricings and the plan of distribution thereof
and will advise the Placement Agents of all further information (financial and other) with respect to the Company required to be set forth
therein. Such registration statement, at any given time, including the exhibits thereto filed at such time, as amended at such time, is
hereinafter called the “Registration Statement”; such prospectus in the form in which it appears in the Registration
Statement at the time of effectiveness is hereinafter called the “Base Prospectus”; and the final prospectus, in the
form in which it will be filed with the Commission pursuant to Rules 430A and/or 424(b) (including the Base Prospectus as it may be amended
or supplemented) is hereinafter called the “Final Prospectus.” The Registration Statement at the time it originally
became effective is hereinafter called the “Original Registration Statement.” Any reference in this Agreement to the
Registration Statement, the Original Registration Statement, the Base Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein (the “Incorporated Documents”), if any, which were or are filed
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), at any given time, as the case may be;
and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement, the Original Registration Statement, the Base Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial
statements and schedules and other information which is “contained,” “included,” “described,” “referenced,”
“set forth” or “stated” in the Registration Statement, the Base Prospectus or the Final Prospectus (and all other
references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Final Prospectus, as the case
may be. As used in this paragraph and elsewhere in this Agreement, “Time of Sale Disclosure Package” means the Base
Prospectus, and any issuer free writing prospectus as defined in Rule 433 of the Act (each, an “Issuer Free Writing Prospectus”),
if any, that the parties hereto shall hereafter expressly agree in writing to treat as part of the Time of Sale Disclosure Package. The
term “any Prospectus” shall mean, as the context requires, the Base Prospectus, the Final Prospectus, and any supplement
to either thereof. The Company has not received any notice that the Commission has issued or intends to issue a stop order suspending
the effectiveness of the Registration Statement or the use of the Base Prospectus or intends to commence a proceeding for any such purpose.


 


 


 






    	 	2	 



     


    

 


(b)                Assurances. The Original Registration Statement, as amended, (and any further documents to be filed with the Commission
that are incorporated by reference into the Original Registration Statement) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material
respects with the Securities Act and the applicable Rules and Regulations and did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Base Prospectus,
and the Final Prospectus, each as of its respective date, comply or will comply in all material respects with the Securities Act and the
applicable Rules and Regulations. Each of the Base Prospectus and the Final Prospectus, as amended or supplemented, did not and will not
contain as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were
filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations
promulgated thereunder, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated
by reference in the Base Prospectus or Final Prospectus), in light of the circumstances under which they were made not misleading. No
post-effective amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission.
Except for this Agreement, there are no documents required to be filed with the Commission in connection with the transaction contemplated
hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time period.
Except for this Agreement, there are no contracts or other documents required to be described in the Base Prospectus or Final Prospectus,
or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required.


 


(c)                Offering Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute,
prior to the Closing Date, any offering material in connection with the offering and sale of the Securities other than the Time of Sale
Disclosure Package.


 


(d)                Subsidiaries. All of the direct and indirect subsidiaries of the Company (the “Subsidiaries”) are set
forth in the Incorporated Documents. The Company owns, directly or indirectly, all of the capital stock or other equity interests of each
Subsidiary free and clear of any liens, charges, security interests, encumbrances, rights of first refusal, preemptive rights or other
restrictions (collectively, “Liens”), and all of the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If
the Company has no subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.


 


(e)                Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not
have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement
or any other agreement entered into between the Company and the Investors, (ii) a material adverse effect on the results of operations,
assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material
adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement
or the transactions contemplated under the Prospectus Supplement (any of (i), (ii) or (iii), a “Material Adverse Effect”)
and no an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened (“Proceeding”) has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


 


 


 






    	 	3	 



     


    

 


(f)                 Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and the Time of Sale Disclosure Package and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of each of this Agreement by the Company and the consummation by it of the transactions contemplated
hereby and thereby and under the Base Prospectus have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Company’s Board of Directors (the “Board of Directors”) or the Company’s
stockholders in connection therewith other than in connection with the Required Approvals (as defined below). This Agreement has been
duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation
of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies
and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.


 


(g)                No Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated
pursuant to the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the transactions
contemplated hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse Effect.


 


(h)                Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant
to the Base Prospectus, other than: (i) the filing with the Commission of the Final Prospectus, (ii) application(s) to the Nasdaq Capital
Market (the “Trading Market”) for the listing of the Securities for trading thereon in the time and manner required
thereby and (iii) such filings as are required to be made under applicable state securities laws (collectively, the “Required
Approvals”).


 


(i)                 Issuance of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance
with the Final Prospectus, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Warrant Shares and the shares underlying the Wainwright Warrants, when issued in accordance with the terms of the Warrants and the
Wainwright Warrants, as applicable, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to the
Final Prospectus.


 


 


 


 


 


 


 






    	 	4	 



     


    

 


(j)                 Capitalization. The capitalization of the Company is as set forth in the Incorporated Documents. The Company has not issued
any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee
stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s
equity incentive plans and pursuant to the conversion and/or exercise of securities of the Company or the Subsidiaries which would entitle
the holder thereof to acquire at any time any Common Stock, including, without limitation, any debt, preferred stock, rights, options,
warrants 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 Stock Equivalents”) outstanding as of the date of the most recently filed
periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar
right to participate in the transactions contemplated by this Agreement and the transactions contemplated pursuant to the Base Prospectus.
Except as a result of the purchase and sale of the Securities or as set forth in the SEC Reports, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any
Person (other than the Investors) and will not result in a right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under any of such securities. Except as set forth in the SEC Reports, there are no outstanding securities or instruments
of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary.
The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
All of the outstanding shares of capital stock of the Company are duly authorized. All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and
none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the
Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.


 


(k)               
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and
any prospectus supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received
a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements
of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.


 


 


 


 






    	 	5	 



     


    

 


(l)                 Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof and incorporated
into the Base Prospectus, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) the Company has not incurred any material liabilities (contingent or otherwise) other than (A)
trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not
required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
equity incentive plans. The Company does not have pending before the Commission any request for confidential treatment of information.
Except for the issuance of the Securities contemplated by the Base Prospectus or disclosed in the Base Prospectus, no event, liability,
fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company
or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required
to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been
publicly disclosed at least 1 Trading Day prior to the date that this representation is made.


 


(m)               Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge
of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an
“Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of this Agreement
and the transactions contemplated pursuant to the Time of Sale Disclosure Package or the Securities or (ii) could, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director
or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act.


 


(n)                Labor Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of
the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or
its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary,
and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries
believe that their relationships with their employees are good. No executive officer of the Company or any Subsidiary, to the knowledge
of the Company, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure
or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor
of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries
to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal,
state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and
wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.


 


(o)                Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected
to result in a Material Adverse Effect.


 


 


 






    	 	6	 



     


    

 


(p)               
Environmental Laws.The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface
or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect


 


(q)                Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the
Time of Sale Disclosure Package, except where the failure to possess such permits could not reasonably be expected to result in a Material
Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings
relating to the revocation or modification of any Material Permit.


 


(r)                
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and Liens for the payment of
federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance in all material
respects.


 


(s)                Patents and Trademarks. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or material for use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
Except as described in the SEC Reports, none of, and neither the Company nor any Subsidiary has received a notice (written or otherwise)
that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned,
within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest
audited financial statements included within the SEC Reports, a notice (written or otherwise) of a claim or otherwise has any knowledge
that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as would not have a Material Adverse Effect.
To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another
Person of any of the Intellectual Property Rights, except as could not have or reasonably be expected to result in a Material Adverse
Effect. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of
all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.


 


(t)                
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a significant increase in cost.


 


(u)                Transactions With Affiliates and Employees. Except as set forth in the Time of Sale Disclosure Package, none of the officers
or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary
is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or
from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000
other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of
the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.


 


 


 






    	 	7	 



     


    

 


(v)                Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. Except as set forth in the
SEC Reports, the Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e))
for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed
by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness
of the Company’s disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the
Company’s most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The
Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date,
there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company
and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial
reporting of the Company and its Subsidiaries.


 


(w)               Certain Fees. Except as set forth in the Base Prospectus, no brokerage or finder’s fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement and the transactions contemplated pursuant to the Base Prospectus. The
Investors shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees
of a type contemplated in this Section that may be due in connection with the transactions contemplated by this Agreement and the transactions
contemplated pursuant to the Base Prospectus.


 


(x)                Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.


 


(y)                Registration Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the
Securities Act of any securities of the Company or any Subsidiary.


 


(z)                 Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice
from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. Except as set forth in the SEC Reports, the Company is, and has no
reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation
and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in
connection with such electronic transfer.


 


(aa)              Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Investors as a result of the Investors and the Company
fulfilling their obligations or exercising their rights under this Agreement and the transactions contemplated pursuant to the Prospectus
Supplement, including without limitation as a result of the Company’s issuance of the Securities and the Investors’ ownership
of the Securities.


 


 


 


 






    	 	8	 



     


    

 


(bb)             Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by this Agreement
and the transactions contemplated pursuant to the Base Prospectus, the Company confirms that neither it nor any other Person acting on
its behalf has provided any of the Investors or their agents or counsel with any information that it believes constitutes or might constitute
material, non-public information which is not otherwise disclosed in the Time of Sale Disclosure Package. The Company understands and
confirms that the Investors will rely on the foregoing representation in effecting transactions in securities of the Company. All of the
disclosure furnished by or on behalf of the Company to the Investors regarding the Company and, its Subsidiaries, their respective businesses
and the transactions contemplated hereby, including the Time of Sale Disclosure Package, is true and correct and does not contain any
untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve months
preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they
were made and when made, not misleading.


 


(cc)              No Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that
would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.


 


(dd)              Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the
receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on
its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking
into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws
of any jurisdiction within one year from the Closing Date. The Time of Sale Disclosure Package incorporates as of the date hereof all
outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in
excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and
other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under
leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.


 


(ee)              Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for
any such claim.


 


(ff)              
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.


 


 


 






    	 	9	 



     


    

 


(gg)             FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured,
packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by
the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure
to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter
or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration,
or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and
promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws
or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical
hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or
any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of its
Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries, and
which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of the Company
have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations of the FDA. 
The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United States of any
product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving or clearing
for marketing any product being developed or proposed to be developed by the Company.


 


(hh)              Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i)
in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market
value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted
under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no
Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with,
the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results
or prospects.


 


(ii)                Accountants. The Company’s accounting firm is set forth in the Incorporated Documents. To the knowledge and belief
of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express
its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December
31, 2022.


 


(jj)                Regulation M Compliance.  The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s Placement Agents
in connection with the placement of the Securities.


 


(kk)             Office of Foreign Assets Control. Neither the Company nor any Subsidiary, to the Company's knowledge, any director, officer,
agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”).


 


(ll)                U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Investor’s request.


 


(mm)            Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity
of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.


 


 


 






    	 	10	 



     


    

 


(nn)             Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.


 


(oo)           
Certificates. Any certificate signed by an officer of the Company and delivered to the Placement Agents or to counsel
for the Placement Agents shall be deemed to be a representation and warranty by the Company to the Placement Agents as to the
matters set forth therein.


(pp)            Reliance.
The Company acknowledges that the Placement Agents will rely upon the accuracy and truthfulness of the foregoing representations and
warranties and hereby consents to such reliance.


 


(qq)           
Forward-Looking Statements. No forward-looking statements (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in the Time of Sale Disclosure Package has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.


 


(rr)              
Statistical or Market-Related Data. Any statistical, industry-related and market-related data included or incorporated by
reference in the Time of Sale Disclosure Package, are based on or derived from sources that the Company reasonably and in good faith believes
to be reliable and accurate, and such data agree with the sources from which they are derived.


 


(ss)             
FINRA Affiliations. There are no affiliations with any FINRA member firm among the Company’s officers, directors or,
to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company.


 


Section 3.             Delivery and Payment. The Closing shall occur at the offices of Lowenstein Sandler LLP, 1251 Avenue of the Americas, New York,
New York 10020 (“Wainwright Counsel”) (or at such other place as shall be agreed upon by the Wainwright and the Company).
Subject to the terms and conditions hereof, at the Closing payment of the purchase price for the Securities sold on such Closing Date
shall be made by Federal Funds wire transfer, against delivery of such Securities, and such Securities shall be registered in such name
or names and shall be in such denominations, as Wainwright may request at least one business day before the time of purchase (as defined
below).


 


Deliveries of the documents
with respect to the purchase of the Securities, if any, shall be made at the offices of Wainwright Counsel. All actions taken at a Closing
shall be deemed to have occurred simultaneously.


 


Section 4.              Covenants and Agreements of the Company. The Company further covenants and agrees with the Placement Agents as follows:


 


(a)                Registration Statement Matters. The Company will advise the Placement Agents promptly after it receives notice thereof of
the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus
or the Final Prospectus has been filed and will furnish the Placement Agents with copies thereof. The Company will file promptly all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a),
14 or 15(d) of the Exchange Act subsequent to the date of any Prospectus and for so long as the delivery of a prospectus is required in
connection with the Offering. The Company will advise the Placement Agents, promptly after it receives notice thereof (i) of any request
by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii)
of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or
suspending the use of the Base Prospectus or the Final Prospectus or any prospectus supplement or any amendment or supplement thereto
or any post-effective amendment to the Registration Statement, of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company
shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use.  If the Commission
shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain
the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have
such new registration statement declared effective as soon as practicable.  Additionally, the Company agrees that it shall comply
with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the
timely filing of documents thereunder, and will use its reasonable efforts to confirm that any filings made by the Company under such
Rule 424(b) are received in a timely manner by the Commission.


 


 


 


 






    	 	11	 



     


    

 


(b)                Blue Sky Compliance. The Company will cooperate with the Placement Agents and the Investors in endeavoring to qualify the
Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agents and the Investors
may reasonably request and will make such applications, file such documents, and furnish such information as may be reasonably required
for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company
shall not be required to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports
and other documents as are or may be required to continue such qualifications in effect for so long a period as the Placement Agents may
reasonably request for distribution of the Securities. The Company will advise the Placement Agents promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.


 


(c)               
Amendments and Supplements to a Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required
by law to be delivered in connection with the distribution of Securities contemplated by the Incorporated Documents or any Prospectus
(the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in
the opinion of Wainwright or counsel for Wainwright, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus
in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading,
or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act
any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own
expense to the Placement Agents and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration
Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents
and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not
misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply
with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with
the Offering, the Company will furnish the Placement Agents with a copy of such proposed amendment or supplement and will not file any
such amendment or supplement to which Wainwright reasonably objects.


 


(d)               
Copies of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agents, without charge,
during the period beginning on the date hereof and ending on the Closing Date of the Offering, as many copies of any Prospectus or prospectus
supplement and any amendments and supplements thereto, as the Placement Agents may reasonably request.


 


(e)               
Free Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of Wainwright,
make any offer relating to the Securities that would constitute an Company Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with
the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that Wainwright expressly consents in writing
to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that it shall (i)
treat each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply with the requirements of Rule 164
and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.


 


(f)                
Transfer Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Common Stock.


 


(g)               
Earnings Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but
in any event not later than 18 months after the Closing Date, the Company will make generally available to its security holders and to
the Placement Agents an earnings statement, covering a period of at least 12 consecutive months beginning after the Closing Date, that
satisfies the provisions of Section 11(a) and Rule 158 under the Securities Act.


 


(h)               
Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with
the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and
in the manner required by the Exchange Act.


 


(i)                
Additional Documents. The Company will enter into any subscription, purchase or other customary agreements as the
Placement Agents or the Investors deem necessary or appropriate to consummate the Offering, all of which will be in form and substance
reasonably acceptable to the Placement Agents and the Investors. The Company agrees that the Placement Agents may rely upon, and each
is a third-party beneficiary of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription
or other agreement with Investors in the Offering.


 


 


 






    	 	12	 



     


    

 


(j)                
No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any
securities of the Company.


 


(k)               
Acknowledgment. The Company acknowledges that any advice given by the Placement Agents to the Company is solely for the
benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without
the prior written consent of Wainwright and the Co-Agent.


 


(l)                
Announcement of Offering. The Company acknowledges and agrees that the Placement Agents may, subsequent to the Closing,
make public their involvement with the Offering.


 


(m)               Reliance on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.


 


(n)                Research Matters. By entering into this Agreement, the Placement Agents do
not provide any promise, either explicitly or implicitly, of favorable or continued research coverage of the Company and the Company hereby
acknowledges and agrees that the selection of Wainwright and the Co-Agent as placement agents for the Offering was in no way conditioned,
explicitly or implicitly, on the Placement Agents providing favorable or any research coverage of the Company. In accordance with FINRA
Rule 2711(e), the parties acknowledge and agree that the Placement Agents have not directly or indirectly offered favorable research,
a specific rating or a specific price target, or threatened to change research, a rating or a price target, to the Company or inducement
for the receipt of business or compensation.


 


(o)               
Subsequent Equity Sales.


 


(1)               From the date hereof until 90 days after the initial Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter
into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or
(ii) file any registration statement or amendment or supplement thereto, other than the Final Prospectus or filing a registration statement
on Form S-8 in connection with any employee benefit plan.


 


(2)               Until the date that is one year after the initial Closing Date, the Company shall be prohibited from effecting or entering into
an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination
of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the
Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right
to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is
based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance
of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future
date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities
at a future determined price; provided, that, starting six months after the Closing Date, the Company may utilize any “at-the-market
offering” arrangement in effect as of the Closing Date or subsequently entered into with Wainwright.


 


(3)               Notwithstanding the foregoing, this Section 4(o) shall not apply in respect of an Exempt Issuance (as defined in the Purchase Agreement
dated as of the date hereof), except that no Variable Rate Transaction shall be an Exempt Issuance. Wainwright may waive the provisions
of this Section 4(o) at any time and from time to time.


 


Section 5.             Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents hereunder shall be subject to
the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the date
hereof and as of the Closing Date as though then made, to the timely performance by each of the Company of its covenants and other obligations
hereunder on and as of such dates, and to each of the following additional conditions:


 


 


 


 






    	 	13	 



     


    

 


(a)                Accountants’ Comfort Letter. On the date hereof, the Placement Agents shall have received, and the Company shall have
caused to be delivered to the Placement Agents, a letter from MaloneBailey, LLP (the independent registered public accounting firm of
the Company), addressed to the Placement Agents, dated as of the date hereof, in form and substance satisfactory to the Placement Agents.
The letter shall not disclose any change in the condition (financial or other), earnings, operations, business or prospects of the Company
from that set forth in the Incorporated Documents or the applicable Prospectus or prospectus supplement, which, in Wainwright’s
sole judgment, is material and adverse and that makes it, in Wainwright’s sole judgment, impracticable or inadvisable to proceed
with the Offering of the Securities as contemplated by such Prospectus.


 


(b)                Compliance with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus (in accordance with
Rule 424(b)) and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been
duly filed with the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing
or suspending the use of any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened
by the Commission; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the
Company shall have been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings for
that purpose shall have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission,
securities regulatory authority or stock exchange; all requests for additional information on the part of the Commission shall have been
complied with; and the FINRA shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.


 


(c)                Corporate Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration
Statement and each Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner
reasonably satisfactory to the counsel of Wainwright and the Co-Agent, and such counsel shall have been furnished with such papers and
information as it may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.


 


(d)                No Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, in
Wainwright’s sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect or any
material adverse change or development involving a prospective material adverse change in the condition or the business activities, financial
or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus
(“Material Adverse Change”).


 


(e)                Opinion of Counsel for the Company. The Placement Agents shall have received on the Closing Date the favorable opinion of
US legal counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter addressed to
Wainwright and the Co-Agent and in form and substance satisfactory to the Placement Agents.


 


(f)                 Officers’ Certificate. The Placement Agents shall have received on the Closing Date a certificate of the Company,
dated as of such Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and
the Placement Agents shall be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Incorporated
Documents, any Prospectus Supplement, and this Agreement and to the further effect that:


 


(i)                The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing
Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at
or prior to such Closing Date;


 


(ii)               No stop order suspending the effectiveness of the Registration Statement or the use of any Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued by
any securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;


 


 


 


 


 






    	 	14	 



     


    

 


(iii)              When the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of
such certificate, the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed
with the Commission, and any Prospectus, contained all material information required to be included therein by the Securities Act and
the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects
conformed to the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder,
as the case may be, and the Registration Statement and the Incorporated Documents, if any, and any Prospectus, did not and do not include
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agents expressly for use therein) and, since the effective date
of the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of the Commission
thereunder to be set forth in the Incorporated Documents which has not been so set forth; and


 


(iv)              Subsequent to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and
any Prospectus, there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company and the Subsidiaries
taken as a whole, except transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent, that
is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred
in the ordinary course of business; (d) any material change in the capital stock (except changes thereto resulting from the exercise of
outstanding stock options or warrants) or outstanding indebtedness of the Company or any Subsidiary; (e) any dividend or distribution
of any kind declared, paid or made on the capital stock of the Company; or (f) any loss or damage (whether or not insured) to the property
of the Company or any Subsidiary which has been sustained or will have been sustained which has a Material Adverse Effect.


 


(g)                Bring-down Comfort Letter.  On the Closing Date, the Placement Agents shall have received from MaloneBailey,
LLP, or such other independent registered public accounting firm of the Company, a letter dated as of such Closing Date, in form
and substance satisfactory to the Placement Agents, to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (a) of this Section 5, except that the specified date referred to therein for the carrying out of
procedures shall be no more than two business days prior to such Closing Date.


 


(h)                Stock Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market,
and the Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration
of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall
the Company have received any information suggesting that the Commission or the Trading Market is contemplating terminating such registration
or listing.


 


(i)                 Lock-Up Agreements. On the Closing Date, the Placement Agents shall have received the executed lock-up agreement, in the
form attached hereto as Exhibit A, from each of the directors and officers of the Company.


 


(j)                 Additional Documents. On or before the Closing Date, the Placement Agents and counsel for Wainwright and the Co-Agent shall
have received such information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance
and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties,
or the satisfaction of any of the conditions or agreements, herein contained.


 


If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by Wainwright by notice to the
Company at any time on or prior to a Closing Date, which termination shall be without liability on the part of any party to any other
party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution) and Section 8 (Representations and Indemnities
to Survive Delivery) shall at all times be effective and shall survive such termination.


 


 


 






    	 	15	 



     


    

 


Section 6.             Payment of Expenses. The Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the
performance of its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation: (i)
all expenses incident to the issuance, delivery and qualification of the Securities (including all printing and engraving costs); (ii)
all fees and expenses of the registrar and transfer agent of the Common Stock; (iii) all necessary issue, transfer and other stamp taxes
in connection with the issuance and sale of the Securities; (iv) all fees and expenses of the Company’s counsel, independent
public or certified public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates
of experts), the Base Prospectus, the Final Prospectus, and all amendments and supplements thereto, and this Agreement; (vi) all filing
fees, reasonable attorneys’ fees and expenses incurred by the Company or the Placement Agents in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the state
securities or blue sky laws or the securities laws of any other country, and, if requested by the Placement Agents, preparing and printing
a “Blue Sky Survey,” an “International Blue Sky Survey” or other memorandum, and any supplements
thereto, advising the Placement Agents of such qualifications, registrations and exemptions; (vii) if applicable, the filing fees incident
to the review and approval by the FINRA of the Placement Agents’ participation in the offering and distribution of the Securities;
(viii) the fees and expenses associated with including the Shares and Warrant Shares on the Trading Market; (ix) all costs and expenses
incident to the travel and accommodation of the Company’s employees on the “Roadshow,” if any; and (x) all other
fees, costs and expenses referred to in Part II of the Registration Statement.


 


Section 7.              Indemnification and Contribution.


 


(a)       The Company
agrees to indemnify and hold harmless the Placement Agents, their affiliates and each person controlling the Placement Agents (within
the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agents, their affiliates
and each such controlling person (the Placement Agents, and each such entity or person, an “Indemnified Person”) from
and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for all
Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are incurred
by an Indemnified Person in investigating, preparing, pursuing or defending any Actions, whether or not any Indemnified Person is a party
thereto, (i) caused by, or arising out of or in connection with, any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (other
than untrue statements or alleged untrue statements in, or omissions or alleged omissions from, information relating to an Indemnified
Person furnished in writing by or on behalf of such Indemnified Person expressly for use in the Incorporated Documents) or (ii) otherwise
arising out of or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection with any such advice, services or
transactions; provided, however, that, in the case of clause (ii) only, the Company shall not be responsible for any Liabilities
or Expenses of any Indemnified Person that are finally judicially determined to have resulted solely from such Indemnified Person's (x)
gross negligence or willful misconduct in connection with any of the advice, actions, inactions or services referred to above or (y) use
of any offering materials or information concerning the Company in connection with the offer or sale of the Securities in the Offering
which were not authorized for such use by the Company and which use constitutes gross negligence or willful misconduct. The Company also
agrees to reimburse each Indemnified Person for all Expenses as they are incurred in connection with enforcing such Indemnified Person's
rights under this Agreement.


 


 


 


 


 


 


 






    	 	16	 



     


    

 


(b)       Upon
receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity may be
sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified
Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity
or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall,
if requested by Wainwright or the Co-Agent, assume the defense of any such Action including the employment of counsel reasonably satisfactory
to the Placement Agents, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or (ii) the named parties
to any such Action (including any impeded parties) include such Indemnified Person and the Company, and such Indemnified Person shall
have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel selected
by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person; provided that the Company
shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for all Indemnified
Persons in connection with any Action or related Actions, in addition to any local counsel. The Company shall not be liable for any settlement
of any Action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without
the prior written consent of the Placement Agents (which shall not be unreasonably withheld), settle, compromise or consent to the entry
of any judgment in or otherwise seek to terminate any pending or threatened Action in respect of which indemnification or contribution
may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all Liabilities arising out of such Action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.


 


(c)       In
the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company
shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect
(i) the relative benefits to the Company, on the one hand, and to the Placement Agents and any other Indemnified Person, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not permitted
by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement Agents
and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate, as
well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary
to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of fees
actually received by the Placement Agents pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the Company,
on the one hand, and to the Placement Agents on the other hand, of the matters contemplated by this Agreement shall be deemed to be in
the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by the Company
in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated, bears
to (b) the fees paid to the Placement Agents under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was not guilty
of fraudulent misrepresentation.


 


(d)       The
Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection with any such advice, services or
transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted solely
from such Indemnified Person's gross negligence or willful misconduct in connection with any such advice, actions, inactions or services.


 


(e)       The
reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person's services under
or in connection with, this Agreement.


 


 


 


 






    	 	17	 



     


    

 


 


Section 8.            Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and
other statements of the Company or any person controlling the Company, of its officers, and of the Placement Agents set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement
Agents, the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to Wainwright, the Co-Agent,
or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Agreement.


 


Section 9.             Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered, e-mailed or telecopied and confirmed
to the parties hereto as follows:


 


If to Wainwright, to the address set forth above
and the contact information set forth below:


 


With a copy to: 


 


Lowenstein Sandler LLP


1251 Avenue of the Americas


New York, New York 10020


Email: sskolnick@lowenstein.com


 


If to the Co-Agent, to the address and email set
forth below:


 


Brookline Capital Markets, LLC


280 Park Avenue, Suite 43W


New York, New York 10017


Email: _________________


Attention:______________


 


With a copy to:


 


Lowenstein Sandler LLP


1251 Avenue of the Americas


New York, New York 10020


Email: sskolnick@lowenstein.com


 


 


If to the Company, to both the address and emails
set forth below:


 


CNS Pharmaceuticals, Inc.


2100 West Loop South, Suite 900


Houston, Texas 77027


Email: Notices@CNSPharma.com; CDowns@CNSPharma.com


Attention: Christopher Downs


 


With a copy to: 


ArentFox Schiff, LLP


1717 K Street, NW


Washington, DC 20006


Email: cavas.pavri@afslaw.com


 


 


 


 


 






    	 	18	 



     


    

 


Any party hereto may change
the address for receipt of communications by giving written notice to the others.


 


Section 10.           Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees,
officers and directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative,
and no other person will have any right or obligation hereunder.


 


Section 11.           Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.


 


Section 12.           Governing Law Provisions. This Agreement shall be deemed to have been made and delivered in New York City and both this engagement
letter and the transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect and in all other
respects by the internal laws of the State of New York, without regard to the conflict of laws principles thereof. Each of the Placement
Agents and the Company: (i) agrees that any legal suit, action or proceeding arising out of or relating to this engagement letter and/or
the transactions contemplated hereby shall be instituted exclusively in New York Supreme Court, County of New York, or in the United States
District Court for the Southern District of New York, (ii) waives any objection which it may have or hereafter to the venue of any such
suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of the New York Supreme Court, County of New York, and
the United States District Court for the Southern District of New York in any such suit, action or proceeding. Each of the Placement Agents
and the Company further agrees to accept and acknowledge service of any and all process which may be served in any such suit, action or
proceeding in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New
York and agrees that service of process upon the Company mailed by certified mail to the Company’s address shall be deemed in every
respect effective service of process upon the Company, in any such suit, action or proceeding, and service of process upon the Placement
Agents mailed by certified mail to the address of Wainwright and the Co-Agent shall be deemed in every respect effective service process
upon the respective Placement Agent, in any such suit, action or proceeding. Notwithstanding any provision of this engagement letter to
the contrary, the Company agrees that neither the Placement Agents nor its affiliates, and the respective officers, directors, employees,
agents and representatives of the Placement Agents, its affiliates and each other person, if any, controlling the Placement Agents or
any of its affiliates, shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in
connection with the engagement and transaction described herein except for any such liability for losses, claims, damages or liabilities
incurred by us that are finally judicially determined to have resulted from the willful misconduct or gross negligence of such individuals
or entities. If either party shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party
in such action or proceeding shall be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action or proceeding.


 


Section 13.           General Provisions.


 


(a)       This
Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. Notwithstanding anything herein to the contrary,
the Engagement Agreement, dated October 11, 2022 (“Engagement Agreement”), between the Company and Wainwright, shall
continue to be effective and the terms therein shall continue to survive and be enforceable by Wainwright in accordance with its terms,
provided that, in the event of a conflict between the terms of the Engagement Agreement and this Agreement, the terms of this Agreement
shall prevail. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing
by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. Section headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.


 


(b)       The
Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agents have acted at arms length, are not
agents of, and owe no fiduciary duties to the Company or any other person, (ii) the Placement Agents owe the Company only those duties
and obligations set forth in this Agreement and (iii) the Placement Agents may have interests that differ from those of the Company. The
Company waives to the full extent permitted by applicable law any claims it may have against the Placement Agents arising from an alleged
breach of fiduciary duty in connection with the offering of the Securities.


 


[The remainder of this page has been intentionally
left blank.]


 


 


 


 


 






    	 	19	 



     


    

 


If the foregoing is in accordance
with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts hereof, shall become
a binding agreement in accordance with its terms.


 


 


 


Very truly yours,


CNS PHARMACEUTICALS,
INC.,


a Nevada corporation


 


 


By:______________________________


Name: John Climaco


Title: Chief Executive Officer


 


 


The foregoing Placement Agency
Agreement is hereby confirmed and accepted as of the date first above written.


 


H.C. WAINWRIGHT & CO., LLC


 


By: __________________________


Name: Mark W. Viklund


Title: Chief Executive Officer


 


BROOKLINE CAPITAL MARKETS, LLC 


 


By: __________________________


Name:


Title:


 


 


 


 


 


 


 


 


 


 


 






    	 	20	 



     


    

 


Exhibit A


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	21