Exhibit
1.1
8,900,000
SHARES of Common
Stock
and
4,005,000
warrants
AMEDICA
CORPORATION
UNDERWRITING
AGREEMENT
January
19, 2017
Maxim
Group LLC
As
the Representative of the
Several
underwriters, if any, named in Schedule I hereto
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned, Amedica Corporation, a Delaware corporation (collectively with its subsidiaries and affiliates, including, without
limitation, all entities disclosed or described in the Registration Statement as being subsidiaries or affiliates of Amedica Corporation,
the “Company”), hereby confirms its agreement (this “Agreement”) with the several underwriters
(such underwriters, including the Representative (as defined below), the “Underwriters” and each an “Underwriter”)
named in Schedule I hereto for whom Maxim Group LLC is acting as representative to the several Underwriters (the “Representative”
and if there are no Underwriters other than the Representative, references to multiple Underwriters shall be disregarded and the
term Representative as used herein shall have the same meaning as Underwriter) on the terms and conditions set forth herein.
It
is understood that the several Underwriters are to make a public offering of the Securities. The Securities are to be initially
offered to the public at the public offering price set forth in the Prospectus Supplement. The Representative may from time to
time thereafter change the public offering price and other selling terms.
It
is further understood that you will act as the Representative for the Underwriters in the offering and sale of the Closing Securities
and, if any, the Option Securities in accordance with this Agreement.
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the
following terms have the meanings set forth in this Section 1.1:
“Action”
shall have the meaning ascribed to such term in Section 3.1(k).
“Affiliate”
means with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls or
is controlled by or is under common control with such Person as such terms are used in and construed under Rule 405 under the
Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action
to close.
“Closing”
means the closing of the purchase and sale of the Closing Securities pursuant to Section 2.1.
“Closing
Date” means the hour and the date on the Trading Day on which all conditions precedent to (i) the Underwriters’
obligations to pay the Closing Purchase Price and (ii) the Company’s obligations to deliver the Closing Securities, in each
case, have been satisfied or waived, but in no event later than 10:00 a.m. (New York City time) on the third (fourth, if the pricing
occurs after 4:30 p.m. Eastern time on any given day) Trading Day following the date hereof or at such earlier time as shall be
agreed upon by the Representative and the Company.
“Closing
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b), which aggregate purchase price shall
be net of underwriting discounts and commissions.
“Closing
Securities” shall have the meaning ascribed to such term in Section 2.1(a)(ii).
“Closing
Shares” shall have the meaning ascribed to such term in Section 2.1(a)(i).
“Closing
Warrants” shall have the meaning ascribed to such term in Section 2.1(a)(ii).
“Combined
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $.01 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.
“Company
Auditors” means Xxxxxxx XxXxxxxxxx LLC and BDO USA, LLP, with offices located at 000 X Xxx Xxxxxx Xx., Xxxxx 000, Xxxx
Xxxx Xxxx, XX 00000.
“Company
Counsel” means Xxxxxx & Whitney LLP, with offices located at 000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxx Xxxx,
XX 00000-0000.
“Company
IP Counsel” means Xxxxxxxx Xxxxxx & Winchester, with offices located at 000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx, Xxxx
00000.
“Contributing
Party” shall have the meaning ascribed to such term in Section 6.4(b).
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Effective
Date” shall have the meaning ascribed to such term in Section 3.1(f).
“EGS”
means Ellenoff Xxxxxxxx & Schole LLP, with offices located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
’’Execution
Date” shall mean the date on which the parties execute and enter into this Agreement.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company
pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of
Directors or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon
the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable
for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities
have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price,
exchange price or conversion price of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person
(or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset
in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to
the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose
of raising capital or to an entity whose primary business is investing in securities.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FINRA”
means the Financial Industry Regulatory Authority.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
means (a) 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), (b) 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 (c) the present value of any lease payments in excess of $50,000 due under leases required to
be capitalized in accordance with GAAP.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(o).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreements” shall mean the lock-up agreements, in the form of Exhibit D attached hereto, delivered on the date
hereof by each of the Company’s officers and directors holding Common Stock or Common Stock Equivalents and each holder
of Common Stock and Common Stock Equivalents holding, on a fully diluted basis, more than 5% of the Company’s issued and
outstanding Common Stock, each such lock-up party being listed on Schedule II hereto.
“Material
Adverse Effect” means (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets, business, 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 any Transaction Document.
“Material
Permit” shall have the meaning ascribed to such term in Section 3.1(n).
“Offering”
shall have the meaning ascribed to such term in Section 2.1(c).
“Option
Closing Date” shall have the meaning ascribed to such term in Section 2.2(c).
“Option
Closing Purchase Price” shall have the meaning ascribed to such term in Section 2.2(b), which aggregate purchase price
shall be net of underwriting discounts and commissions.
“Option
Securities” shall have the meaning ascribed to such term in Section 2.2(a).
“Option
Shares” shall have the meaning ascribed to such term in Section 2.2(a).
“Option
Warrants” shall have the meaning ascribed to such term in Section 2.2(a).
“Option
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Option Warrants.
“Over-Allotment
Option” shall have the meaning ascribed to such term in Section 2.2.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Preliminary
Prospectus” means, if any, any preliminary prospectus relating to the Securities, Warrant Shares and Option Warrant
Shares, if any, included in the Registration Statement or filed with the Commission pursuant to Rule 424(b).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed for the Registration Statement with respect to the Securities, Warrant Shares and Option Warrant
Shares, if any.
“Prospectus
Supplement” means, if any, any supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is
filed with the Commission.
“Registration
Statement” means, collectively, the various parts of the registration statement prepared by the Company on Form S-3
(File No. 333-205545) with respect to the Securities, Warrant Shares and Option Warrant Shares, if any, as amended as of the date
hereof, including the Prospectus and Prospectus Supplement, if any, the Preliminary Prospectus, if any, and all exhibits filed
with or incorporated by reference into such registration statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Right
of Participation” shall have the meaning ascribed to such term in Section 4.21.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Closing Securities and, if any, the Option Securities.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means, collectively, the shares of Common Stock delivered to the Underwriters in accordance with Section 2.1(a)(i) and Section
2.2(a).
“Share
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company
formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on
the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the
New York Stock Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Warrants, the Lock-Up Agreements and any other documents or agreements executed
in connection with the transactions contemplated hereunder.
“Transfer
Agent” means the current transfer agent of the Company and any successor transfer agent of the Company.
“Warrants”
means the Warrants delivered to the Underwriters in accordance with Section 2.1(a)(ii) and Section 2.2(a).
“Warrant
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
(a) Upon
the terms and subject to the conditions set forth herein, the Company agrees to sell, in the aggregate, 8,900,000 shares
of Common Stock and 4,005,000 Warrants, and each Underwriter agrees to purchase, severally and not jointly, at the Closing,
the following securities of the Company:
(i) the number of shares of Common Stock (the “Closing Shares”) set forth opposite the name of such Underwriter
on Schedule I hereof; and
(ii) Warrants
to purchase up to the number of shares of Common Stock set forth opposite the name of such Underwriter on Schedule I hereof
(the “Closing Warrants” and together with the Closing Shares, the “Closing Securities”),
which Warrants shall have an exercise price of $0.55 per share, subject to adjustment as provided therein, in the form
of Exhibit C attached hereto.
(b) The
aggregate purchase price for the Closing Securities shall equal the amount set forth opposite the name of such Underwriter on
Schedule I hereto (the “Closing Purchase Price”). The combined purchase price for one Share and 0.45
Warrants (the “Combined Purchase Price”) shall be allocated as $0.50999955 per Share (the
“Share Purchase Price”) and $0.00000045 per 0.45 Warrants (the “Warrant Purchase
Price”). Only whole warrants are exercisable and each whole Warrant shall be exercisable for one Share; and
(c) On the Closing Date, each Underwriter shall deliver or cause to be delivered to the Company, via wire transfer, immediately available
funds equal to such Underwriter’s Closing Purchase Price and the Company shall deliver to, or as directed by, such Underwriter
its respective Closing Securities and the Company shall deliver the other items required pursuant to Section 2.3 deliverable at
the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.3 and 2.4, the Closing shall occur at the
offices of EGS or such other location as the Company and Representative shall mutually agree. The Securities are to be offered
initially to the public at the offering price set forth on the cover page of the Prospectus Supplement (the “Offering”).
2.2 Over-Allotment Option.
(a) For
the purposes of covering any over-allotments in connection with the distribution and sale of the Closing Securities, the Representative
is hereby granted an option (the “Over-Allotment Option”) to purchase up to an additional 15% of the Shares
plus up to 15% of the Warrants; provided that in no event may the aggregate market value of securities sold in the Offering, including
from the Over-Allotment Option, exceed the limitations set forth in Rule I.B.6 of Form S-3. Accordingly, in no event shall this
amount exceed, in the aggregate, up to 801,000 shares of Common Stock (the “Option Shares”) and Warrants
to purchase up to 360,450 shares of Common Stock (the “Option Warrants” and collectively with the Option
Shares, the “Option Securities”) which may be purchased in any combination of Option Shares and/or Option Warrants
at the Share Purchase Price and/or Warrant Purchase Price, respectively.
(b) In connection with an exercise of the Over-Allotment Option, (a) the purchase price to be paid for the Option Shares is equal
to the product of the Share Purchase Price multiplied by the number of Option Shares to be purchased and (b) the purchase price
to be paid for the Option Warrants is equal to the product of the Warrant Purchase Price multiplied by the number of Option Warrants
(the aggregate purchase price to be paid on an Option Closing Date, the “Option Closing Purchase Price”).
(c) The Over-Allotment Option granted pursuant to this Section 2.2 may be exercised by the Representative as to all (at any time)
or any part (from time to time) of the Option Securities within 45 days after the Execution Date. An Underwriter will not be under
any obligation to purchase any Option Securities prior to the exercise of the Over-Allotment Option by the Representative. The
Over-Allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the Representative, which
must be confirmed in writing by overnight mail or facsimile or other electronic transmission setting forth the number of Option
Shares and/or Option Warrants to be purchased and the date and time for delivery of and payment for the Option Securities (each,
an “Option Closing Date”), which will not be later than three full Business Days after the date of the notice
or such other time as shall be agreed upon by the Company and the Representative, at the offices of EGS or at such other
place (including remotely by facsimile or other electronic transmission) as shall be agreed upon by the Company and the Representative.
If such delivery and payment for the Option Securities does not occur on the Closing Date, each Option Closing Date will be as
set forth in the notice. Upon exercise of the Over-Allotment Option, the Company will become obligated to convey to the Underwriters,
and, subject to the terms and conditions set forth herein, the Underwriters will become obligated to purchase, the number of Option
Shares and/or Option Warrants specified in such notice. The Representative may cancel the Over-Allotment Option at any time prior
to the expiration of the Over-Allotment Option by written notice to the Company.
2.3 Deliveries.
The Company shall deliver or cause to be delivered to each Underwriter (if applicable) the following:
(i) At the Closing Date, the Closing Shares and, as to each Option Closing Date, if any, the applicable Option Shares, which shares
shall be delivered via The Depository Trust Company Deposit or Withdrawal at Custodian system for the accounts of the several
Underwriters;
(ii) At the Closing Date, the Closing Warrants and, as to each Option Closing Date, if any, the applicable Option Warrants represented
by one or more global securities in book-entry form which will be deposited by or on behalf of the Company in the name of Cede
& Co., as nominee of The Depository Trust or its designated custodian, for the accounts and in such authorized denominations
as the applicable Underwriter may request in writing at least two full Business Days prior to the Closing Date and, if any, each
Option Closing Date;
(iii) At the Closing Date, a legal opinion of Company Counsel addressed to the Underwriters, including, without limitation, a negative
assurance letter, and as to each Option Closing Date, if any, a bring-down opinion from Company Counsel, each in form and substance
reasonably satisfactory to the Representative;
(iv) At the Closing Date, a legal opinion of Company IP Counsel addressed to the Underwriters, including, without limitation, a negative
assurance letter, and as to each Option Closing Date, if any, a bring-down opinion from Company IP Counsel, each in form and substance
reasonably satisfactory to the Representative;
(v) Contemporaneously herewith, a cold comfort letter, addressed to the Underwriters and in form and substance reasonably satisfactory
in all material respects to the Representative from the Company Auditors dated, respectively, as of the date of this Agreement
and a bring-down letter dated as of the Closing Date and each Option Closing Date, if any;
(vi) At the Closing Date and on each Option Closing Date, the duly executed and delivered Officer’s Certificate, substantially
in the form required by Exhibit A attached hereto;
(vii) At the Closing Date and on each Option Closing Date, the duly executed and delivered Secretary’s Certificate, substantially
in the form required by Exhibit B attached hereto; and
(viii) Contemporaneously herewith, the duly executed and delivered Lock-Up Agreements.
2.4 Closing
Conditions. The respective obligations of each Underwriter hereunder in connection with the Closing and each Option Closing
Date, if any, are subject to the following conditions being met or waived by the Representative:
(i) the accuracy in all material respects when made and on the date in question (other than representations and warranties of the
Company already qualified by materiality, which shall be true and correct in all material respects) of the representations and
warranties of the Company contained herein (unless as of a specific date therein);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the date in question shall have
been performed;
(iii)
the delivery by the Company of the items set forth in Section 2.3 of this Agreement;
(iv) the Registration Statement shall be effective on the date of this Agreement and at each of the Closing Date and each Option
Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request
on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of the
Representative;
(v) by the Execution Date, if required by FINRA, the Underwriters shall have received clearance from FINRA as to the amount of
compensation allowable or payable to the Underwriters as described in the Registration Statement;
(vi) the Closing Shares and the Option Shares and the Warrant Shares and Option Warrant Shares have been approved for listing on
the Trading Market; and
(vii)
prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have been no material adverse
change or development involving a prospective material adverse change in the condition or 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; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the
Company or any Affiliate of the Company before or by any court or federal or state commission, board or other administrative
agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations or
financial condition or income of the Company, except as set forth in the Registration Statement and Prospectus; (iii) no stop
order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by
the Commission; and (iv) the Registration Statement and the Prospectus and any amendments or supplements thereto shall
contain all material statements which are required to be stated therein in accordance with the Securities Act and the rules
and regulations thereunder and shall conform in all material respects to the requirements of the Securities Act and the rules
and regulations thereunder, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto
shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed
a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding
section of the Disclosure Schedules, the Company represents and warrants to the Underwriters as of the Execution Date, as of the
Closing Date and as of each Option Closing Date, if any, as follows:
(a) Subsidiaries.
All of the direct and indirect Subsidiaries of the Company are set forth in the SEC Reports. The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities. If the Company has no Subsidiaries, all other references to the Subsidiaries or
any of them in the Transaction Documents shall be disregarded.
(b) 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 a Material Adverse Effect and no 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.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction Documents to which it is a party and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents
by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s
stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each
other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and,
when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to
which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby
and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate
or articles of incorporation, bylaws 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.
(e) Filings,
Consents and Approvals. Except as set forth on Schedule 3.1(e) of the Disclosure Schedules, 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 the Transaction Documents, other than: (i) the filing with the Commission of the Prospectus Supplement,
(ii) such filings as are required to be made under applicable state securities laws, (iii) such as are required to be obtained
or made under applicable rules of FINRA and The Nasdaq Stock Market, and (iv) such as have been obtained, given or made as of
the date hereof (collectively, the “Required Approvals”).
(f) Registration
Statement. The Company has filed with the Commission the Registration Statement, including any related Prospectus or Prospectuses,
for the registration of the Securities, Warrant Shares and Option Warrant Shares under the Securities Act, which Registration
Statement has been prepared by the Company in all material respects in conformity with the requirements of the Securities Act
and the rules and regulations of the Commission under the Securities Act. The Registration Statement has been declared effective
by the Commission on July 20, 2015 (the “Effective Date”). The Registration Statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule and the Prospectus Supplement will meet the
requirements set forth in Rule 424(b). The Company has advised the Representative of all further information (financial and other)
with respect to the Company required to be set forth therein in the Registration Statement and the Prospectus Supplement. Any
reference in this Agreement to the Registration Statement, the Prospectus or any Prospectus Supplement shall be deemed to refer
to and include the documents incorporated by reference therein; and any reference in this Agreement to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Prospectus or any Prospectus
Supplement 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 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 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, or the Prospectus,
as the case may be. No stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus has
been issued, and no proceeding for any such purpose is pending or has been initiated or, to the Company’s knowledge, is
threatened by the Commission. For purposes of this Agreement, “free writing prospectus” has the meaning set
forth in Rule 405 under the Securities Act. The Company will not, without the prior consent of the Representative, prepare, use
or refer to, any free writing prospectus.
(g) Issuance
of Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Warrant Shares and Option Warrant Shares, if any, when issued in accordance with the terms of the Warrants and Option Warrants,
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 this Agreement, the Warrants
and the Option Warrants. The holder of the Securities will not be subject to personal liability by reason of being such holders.
The Securities, Warrant Shares and/or Option Warrant Shares are not and will not be subject to the preemptive rights of any holders
of any security of the Company or similar contractual rights granted by the Company. All corporate action required to be taken
for the authorization, issuance and sale of the Securities has been duly and validly taken. The Securities conform in all
material respects to all statements with respect thereto contained in the Registration Statement.
(h) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports and the Prospectus Supplement. In addition, Schedule 3.1(h)(i)
of the Disclosure Schedules sets forth the outstanding options and warrants of the Company. The Company has not issued any capital
stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock
options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s
employee stock purchase plans, pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date
of the most recently filed periodic report under the Exchange Act, and 962,380 shares of Common Stock issued to Hampshire MedTech
Partners II GP, LLC and its Affiliates on November 9, 2016. No Person has any right of first refusal, preemptive right, right
of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents, except such
Persons as are participating in the transactions contemplated by the Transaction Documents or who have waived such rights on or
prior to the date hereof as set forth on Schedule 3.1(e) of the Disclosure Schedules. Except as a result of the purchase and sale
of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any shares of Common Stock, or 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.
Except as set forth on Schedule 3.1(h) of the Disclosure Schedules, the issuance and sale of the Securities will not obligate
the Company to issue shares of Common Stock or other securities to any Person (other than the Underwriters) 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.
All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation
of any preemptive rights or similar rights to subscribe for or purchase securities. The authorized shares of the Company conform
in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus Supplement.
The offers and sales of the Company’s securities were at all relevant times either registered under the Securities Act and
the applicable state securities or Blue Sky laws or, based in part on the representations and warranties of the purchasers, exempt
from such registration requirements. 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.
(i) 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 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. The agreements and
documents described in the Registration Statement, the Preliminary Prospectus, the Prospectus, any Prospectus Supplement and the
SEC Reports conform to the descriptions thereof contained therein and there are no agreements or other documents required by the
Securities Act and the rules and regulations thereunder to be described in the Registration Statement, the Prospectus, the Prospectus
Supplement or the SEC Reports or to be filed with the Commission as exhibits to the Registration Statement, that have not been
so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party
or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement, the Prospectus, or the
SEC Reports, or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company,
is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge,
the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought. None of such agreements or instruments has been assigned by the Company, and neither the
Company nor, to the best of the Company’s knowledge, any other party is in default thereunder and, to the best of the Company’s
knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder.
To the best of the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments
will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without
limitation, those relating to environmental laws and regulations.
(j) 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, (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 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,
(v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
stock option plans and (vi) no officer or director of the Company has resigned from any position with the Company. The Company
does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of
the Securities contemplated by this Agreement, 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,
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. Unless otherwise disclosed in an SEC Report filed prior to the date hereof, the
Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money;
or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.
(k) 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 the Transaction Documents 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, to the Company’s knowledge, any director or officer thereof, is or
has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or
any Subsidiary under the Exchange Act or the Securities Act.
(l) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of
the Company, which 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. To the knowledge of the Company, no executive officer of the Company
or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive
covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company
or any of its Subsidiaries to any liability with respect to any of the foregoing matters. 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.
(m) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has
the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any
court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation
of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as
could not have or reasonably be expected to result in a Material Adverse Effect.
(n) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (each,
a “Material Permit”), and neither the Company nor any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any Material Permit.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens
for the payment of federal, state 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.
(p) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights as described in the SEC Reports as necessary or required for use in connection with their respective businesses
and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2)
years from the date of this Agreement, except as could not reasonably be expected to result in a Material Adverse Effect. Neither
the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC
Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. Schedule
3.1(p) to the Disclosure Schedules sets forth any intellectual property in which the Company has granted a security interest.
To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by
another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(q) 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 that would have a Material
Adverse Effect.
(r) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company or
any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party
to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments
to or from, any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case
in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option
plan of the Company.
(s) Xxxxxxxx-Xxxxx;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with any and all
applicable requirements of the Xxxxxxxx-Xxxxx 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 applicable to the Company and effective as of the date
hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets 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 provide reasonable assurance that information required to be disclosed by the Company
in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods
specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness
of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most
recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented
in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there
have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company
and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial
reporting of the Company and its Subsidiaries.
(t) Certain
Fees. Except as set forth in the Prospectus Supplement, no brokerage or finder’s fees or commissions are or will be
payable by the Company, any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents. To the Company’s knowledge,
there are no other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its
stockholders that may affect the Underwriters’ compensation, as determined by FINRA. The Company has not made any direct
or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise,
in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital
to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation or association
with any FINRA member, within the twelve months prior to the Execution Date. None of the net proceeds of the Offering will be
paid by the Company to any participating FINRA member or its affiliates, except as specifically authorized herein.
(u) 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.
(v) Registration
Rights. Except as set forth on Schedule 3.1(v) of the Disclosure Schedules, 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.
(w) 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 disclosed in the SEC Reports, the Company has not, in the 12 months preceding the date
hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason
to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing
corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing
corporation) in connection with such electronic transfer.
(x) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable as a result of the Underwriters and the Company fulfilling
their obligations or exercising their rights under the Transaction Documents.
(y) Disclosure;
10b-5. The Registration Statement (and any further documents to be filed with the Commission) contains all exhibits and schedules
as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, if any, at the
time it became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable rules
and regulations under the Securities Act and did not and, as amended or supplemented, if applicable, will 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 preliminary (if any) and final Prospectus as of its respective date, comply in all material respects
with the Securities Act and the Exchange Act and the applicable rules and regulations. The 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 SEC Reports,
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, 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 the SEC Reports
incorporated by reference in the Prospectus), in light of the circumstances under which they were made not misleading; and any
further documents so filed and incorporated by reference in the Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act and the applicable rules and regulations, as applicable,
and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, 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. 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. There are no contracts or other documents required
to be described in the Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have
not been described or filed as required. 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.
(z) 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.
(aa) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the
Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds
the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to
carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in
respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).
The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation
under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. The SEC Reports sets forth
as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company
or any Subsidiary has commitments.
(bb) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed 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.
(cc) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent
or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns
from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person
acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any
provision of FCPA. The Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient
to cause the Company to comply in all material respects with the FCPA.
(dd) Accountants.
To the knowledge and belief of the Company, (i) BDO USA, LLP is an independent registered public accounting firm as required by
the Exchange Act, (ii) Xxxxxxx XxXxxxxxxx LLC was an independent registered public accounting firm as required by the Exchange
Act at the time of their audit of the financial statements of the Company and its subsidiaries as of December 31, 2015 and 2014,
(iii) BDO USA, LLP 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, 2016, and (iv) Xxxxxxx XxXxxxxxxx LLC shall reissue its opinion with respect to
the financial statements to be included in the Company’s Annual Report as it relates to the fiscal years ended December
31, 2015 and 2014. Neither of the Company Auditors have, during the periods covered by the financial statements included in the
Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
(ee) 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 “Product”),
such 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 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 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.
(ff) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer,
agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department.
(gg) 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 the Representative’s
request.
(hh) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System
(the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%)
or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(ii) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company or any Subsidiary, threatened.
(jj) D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires completed by each of the
Company’s directors and officers immediately prior to the Offering as well as in the Lock-Up Agreement provided to the Underwriters
is true and correct in all material respects and the Company has not become aware of any information which would cause the information
disclosed in such questionnaires become inaccurate and incorrect.
(kk) FINRA
Affiliation. No officer, director or any beneficial owner of 5% or more of the Company’s unregistered securities has
any direct or indirect affiliation or association with any FINRA member (as determined in accordance with the rules and regulations
of FINRA). The Company will advise the Representative and EGS if it learns that any officer, director or owner of 5% or
more of the Company’s outstanding shares of Common Stock or Common Stock Equivalents is or becomes an affiliate or associated
person of a FINRA member firm.
(ll) Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to EGS shall be
deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
(mm) Board
of Directors. The Board of Directors is comprised of the persons set forth in the SEC Reports. The qualifications of the persons
serving as board members and the overall composition of the Board of Directors comply with the Xxxxxxxx-Xxxxx Act of 2002 and
the rules promulgated thereunder applicable to the Company and the rules of the Trading Market. At least one member of the Board
of Directors qualifies as a “financial expert” as such term is defined under the Xxxxxxxx-Xxxxx Act of 2002 and the
rules promulgated thereunder and the rules of the Trading Market. In addition, at least a majority of the persons serving on the
Board of Directors qualify as “independent” as defined under the rules of the Trading Market.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Amendments
to Registration Statement. The Company has delivered, or will as promptly as practicable deliver, to the Underwriters complete
conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part
thereof, and conformed copies of the Registration Statement (without exhibits), the Prospectus and any Prospectus Supplement,
as amended or supplemented, in such quantities and at such places as an Underwriter reasonably requests. 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 Prospectus, any Prospectus Supplements, the Registration
Statement, and copies of the documents incorporated by reference therein. The Company shall not file any such amendment or supplement
to which the Representative shall reasonably object in writing.
4.2 Federal
Securities Laws.
(a) Compliance.
During the time when a Prospectus is required to be delivered under the Securities Act, the Company will use its best efforts
to comply with all requirements imposed upon it by the Securities Act and the rules and regulations thereunder and the Exchange
Act and the rules and regulations thereunder, as from time to time in force, so far as necessary to permit the continuance of
sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus. If at any time when a Prospectus
relating to the Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of
which, in the opinion of counsel for the Company or counsel for the Underwriters, the Prospectus, as then amended or supplemented,
includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the Securities Act, the Company will notify the Underwriters promptly (or if
such opinion is of counsel for the Underwriters, the Underwriters shall promptly notify the Company, or the counsel for the Underwriters
shall promptly notify counsel for the Company) and prepare and file with the Commission, subject to Section 4.1 hereof, an appropriate
amendment or supplement in accordance with Section 10 of the Securities Act.
(b) Filing
of Prospectus Supplement. The Company will file the Prospectus Supplement (in form and substance reasonably satisfactory to
the Representative) with the Commission pursuant to the requirements of Rule 424.
(c) Exchange
Act Registration. For a period of three years from the Execution Date, the Company will use its reasonable best efforts to
maintain the registration of the Common Stock under the Exchange Act. The Company will not deregister the Common Stock under the
Exchange Act without the prior written consent of the Representative (except in connection with, and subject to the exercise of
fiduciary duties of the Board of Directors, an acquisition, merger, or similar transaction of the Company in which the Company
ceases to exist as an independent entity, approved by the Company’s Board of Directors).
(d) Free
Writing Prospectuses. The Company represents and agrees that it has not made and will not make any offer relating to the Securities
that would constitute an issuer free writing prospectus, as defined in Rule 433 of the rules and regulations under the Securities
Act, without the prior consent of the Representative. Any such free writing prospectus consented to by the Representative is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus” as defined in rule and regulations under the Securities
Act, and has complied and will comply with the applicable requirements of Rule 433 of the Securities Act, including timely Commission
filing where required, legending and record keeping. The Representative shall not distribute any free writing prospectus without
the consent of the Company.
4.3 Delivery
to the Underwriters of Prospectuses. The Company will deliver to the Underwriters, without charge, from time to time during
the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act such number of copies
of each Prospectus as the Underwriters may reasonably request.
4.4 Effectiveness
and Events Requiring Notice to the Underwriters. During the period when the Prospectus is required to be delivered under the
Securities Act, the Company will use its best efforts to cause the Registration Statement to remain effective with a current prospectus,
and will notify the Underwriters promptly and confirm the notice in writing: (i) of the effectiveness of the Registration Statement
and any amendment thereto; (ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening,
of any proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension
of the qualification of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any
proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the
Registration Statement or Prospectus under the Securities Act in respect of the Securities; (v) of the receipt of any comments
or request for any additional information from the Commission; and (vi) of the happening of any event during the period described
in this Section 4.4 that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement,
the Prospectus or any Prospectus Supplement untrue or that requires the making of any changes in the Registration Statement, the
Prospectus or any Prospectus Supplement in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification
at any time, the Company will make commercially reasonable efforts to obtain promptly the lifting of such order.
4.5 Reports
to the Underwriters; Expenses.
(a) For
a period of two years from the Execution Date, the Company will furnish to the Underwriters copies of such financial statements
and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities
and also promptly furnish to the Underwriters: (i) a copy of each periodic report the Company shall be required to file with the
Commission; (ii) a copy of every press release and every news item and article with respect to the Company or its affairs which
was released by the Company; (iii) a copy of each Form 8-K prepared and filed by the Company; (iv) a copy of each registration
statement filed by the Company under the Securities Act; (v) such additional documents and information with respect to the Company
and the affairs of any future Subsidiaries of the Company as the Representative may from time to time reasonably request; provided
that the Underwriters shall each sign, if requested by the Company, a Regulation FD compliant confidentiality agreement which
is reasonably acceptable to the Representative in connection with such Underwriter’s receipt of such information. Documents
filed with the Commission pursuant to its XXXXX system, or, with respect to (ii) above, pursuant to any other Regulation FD compliant
method, shall be deemed to have been delivered to the Underwriters pursuant to this Section.
(b) General
Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and each Option Closing Date,
if any, to the extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company
under this Agreement, including, but not limited to: (a) all filing fees and communication expenses relating to the registration
of the Securities to be sold in the Offering (including the Option Securities, Warrant Shares and Option Warrant Shares) with
the Commission; (b) all FINRA Public Offering Filing System fees associated with the review of the Offering by FINRA; all fees
and expenses relating to the listing of such Closing Shares, Option Shares, the Warrant Shares and the Option Warrant Shares on
the Trading Market and such other stock exchanges as the Company and the Representative together determine; (c) all fees, expenses
and disbursements relating to the registration or qualification of such Securities under the “blue sky” securities
laws of such states and other foreign jurisdictions as the Representative may reasonably designate; (d) the costs of all mailing
and printing of the underwriting documents (including, without limitation, the Underwriting Agreement, and, if appropriate, any
Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration
Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as
the Representative may reasonably deem necessary; (e) the costs and expenses of the Company’s public relations firm; (f)
the costs of preparing, printing and delivering the Securities, the Warrant Shares and the Option Warrant Shares; (g) fees and
expenses of the Transfer Agent for the Securities, the Warrant Shares and the Option Warrant Shares (including, without limitation,
any fees required for same-day processing of any instruction letter delivered by the Company); (h) stock transfer and/or stamp
taxes, if any, payable upon the transfer of securities from the Company to the Underwriters; (i) the fees and expenses of the
Company’s accountants; (j) the fees and expenses of the Company’s legal counsel and other agents and representatives;
(k) the Underwriters’ costs of mailing prospectuses to prospective investors; (l) the costs associated with advertising
the Offering in the national editions of the Wall Street Journal and New York Times after the Closing Date, and (m) any fees that
may be payable to other investment banks or broker dealers related to this offering.
(c) Other
Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 4.5(b), on the Closing
Date, the Company will reimburse the Representative for its reasonable out-of-pocket expenses related to the Offering, including,
without limitation, the reasonable fees and expenses of counsel to the Representative, up to $100,000 by deduction from the proceeds
of the Offering contemplated herein.
4.6 Application
of Net Proceeds. The Company will apply the net proceeds from the Offering received by it in a manner consistent with the
application described under the caption “Use of Proceeds” in the Prospectus Supplement.
4.7 Delivery
of Earnings Statements to Security Holders. The Company will make generally available to its security holders as soon as practicable,
but not later than the first day of the fifteenth full calendar month following the Execution Date, an earnings statement (which
need not be certified by independent public or independent certified public accountants unless required by the Securities Act
or the Rules and Regulations under the Securities Act, but which shall satisfy the provisions of Rule 158(a) under Section 11(a)
of the Securities Act) covering a period of at least twelve consecutive months beginning after the Execution Date.
4.8 Stabilization.
Neither the Company, nor, to its knowledge, any of its employees, directors or shareholders (without the consent of the Representative)
has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected
to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities, the Warrant Shares and the Option Warrant Shares.
4.9 Internal
Controls. The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded
as necessary in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
4.10 Accountants.
For a period of three (3) years from the Execution Date, the Company shall continue to retain a nationally recognized independent
certified public accounting firm. The Underwriters acknowledge that the Company Auditors are acceptable to the Underwriters.
4.11 FINRA.
The Company shall advise the Underwriters (who shall make an appropriate filing with FINRA) if it is aware that any officer, director,
5% or greater shareholder of the Company or Person that received the Company’s unregistered equity securities in the past
180 days is or becomes an affiliate or associated person of a FINRA member firm prior to the earlier of the termination of this
Agreement or the conclusion of the distribution of the Offering.
4.12 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely
contractual and commercial in nature, based on arms-length negotiations and that neither the Underwriters nor their affiliates
or any Selected Dealer shall be deemed to be acting in a fiduciary capacity, or otherwise owes any fiduciary duty to the Company
or any of its affiliates in connection with the Offering and the other transactions contemplated by this Agreement. Notwithstanding
anything in this Agreement to the contrary, the Company acknowledges that the Underwriters may have financial interests in the
success of the Offering that are not limited to the difference between the price to the public and the purchase price paid to
the Company by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Company
for, any of such additional financial interests. The Company hereby waives and releases, to the fullest extent permitted by law,
any claims that the Company may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty.
4.13 Securities
Laws Disclosure; Publicity. By 9:00 AM (New York City time) on the date hereof, the Company shall issue a press release disclosing
the material terms of the Offering. The Company and the Representative shall consult with each other in issuing any other press
releases with respect to the Offering, and neither the Company nor any Underwriter shall issue any such press release nor otherwise
make any such public statement without the prior consent of the Company, with respect to any press release of such Underwriter,
or without the prior consent of such Underwriter, with respect to any press release of the Company, which consent shall not unreasonably
be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide
the other party with prior notice of such public statement or communication. The Company will not issue press releases or engage
in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m. (New York City
time) on the first business day following the 40th day following the Closing Date, other than normal and customary releases issued
in the ordinary course of the Company’s business.
4.14 Board
Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as board
members and the overall composition of the Board of Directors comply with the Xxxxxxxx-Xxxxx Act of 2002 and the rules promulgated
thereunder and with the listing requirements of the Trading Market and (ii) if applicable, at least one member of the Board of
Directors qualifies as a “financial expert” as such term is defined under the Xxxxxxxx-Xxxxx Act of 2002 and the rules
promulgated thereunder.
4.15 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that
any Underwriter of the Securities is an “Acquiring Person” under any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Underwriter of Securities could be deemed to trigger the provisions of any such plan or arrangement,
by virtue of receiving Securities.
4.16 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available
at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company
to issue the Closing Shares and the Option Shares pursuant to the Over-Allotment Option and Warrant Shares and Option Warrant
Shares pursuant to any exercise of the Warrants or Option Warrants, respectively.
4.17 Listing
of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Stock on
the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote
all of the Closing Shares, Option Shares, Warrant Shares and Option Warrant Shares on such Trading Market and promptly secure
the listing of all of the Closing Shares, Option Shares, Warrant Shares and Option Warrant Shares on such Trading Market. The
Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include
in such application all of the Closing Shares, Option Shares, Warrant Shares and Option Warrant Shares, and will take such other
action as is necessary to cause all of the Closing Shares, Option Shares, Warrant Shares and Option Warrant Shares to be listed
or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to
continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market.
4.18 Subsequent
Equity Sales.
(a) From
the date hereof until 90 days following the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents.
(b) From
the date hereof until 90 days following the 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, whereby
the Company may issue securities at a future determined price. Any Underwriter shall be entitled to obtain injunctive relief against
the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.21 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall
be an Exempt Issuance.
4.19 Research
Independence. In addition, the Company acknowledges that each Underwriter’s research analysts and research departments,
if any, are required to be independent from their respective investment banking divisions and are subject to certain regulations
and internal policies, and that such Underwriter’s research analysts may hold and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering that differ from the views of its investment bankers.
The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against such
Underwriter with respect to any conflict of interest that may arise from the fact that the views expressed by their independent
research analysts and research departments may be different from or inconsistent with the views or advice communicated to the
Company by such Underwriter’s investment banking divisions. The Company acknowledges that the Representative is a full service
securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account
or the account of its customers and hold long or short position in debt or equity securities of the Company.
4.20 Capital
Changes. Until one year from the Closing Date, and other than to maintain compliance with the listing requirements of the
Trading Market, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock without
the prior written consent of the Representative.
4.21 Right
of Participation. The Company grants the Representative the right of first refusal (“Right of Participation”)
for a period of twelve (12) months from the Closing Date to act at very minimum as co-manager and co-book runner and/or co-placement
agent, with at least 33.3% of the economics, for any and all future public and private equity financings of the Company or any
successor to or any subsidiary of the Company (excluding (i) at-the-market offerings, (ii) funding from a strategic investor,
or (iii) equity issued to purchase business assets or to acquire a strategic company). The Company shall provide written notice
to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public
or private sale within 10 days after receipt of a written notice from the Company containing such proposal, then Representative
will have no claim or right with respect to any such sale contained in any such notice.
4.22 Warrant
Shares.
(a) Provided
that the holder of a Warrant is not an affiliate of the Company under Rule 144 promulgated under the Securities Act, if all or
any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance of the
Warrant Shares or Option Warrant Shares or if the Warrant is exercised via cashless exercise at a time when such Warrant Shares
or Option Warrant Shares would be eligible for resale under Rule 144 by a non-affiliate of the Company, the Warrant Shares or
Option Warrant Shares issued pursuant to any such exercise shall be issued free of all restrictive legends.
(b) If
at any time following the date hereof the Registration Statement (or any subsequent registration statement registering the sale
or resale of the Warrant Shares or Option Warrant Shares) is not effective or is not otherwise available for the sale of the Warrant
Shares or Option Warrant Shares, the Company shall promptly notify the holders of the Warrants in writing that such registration
statement is not then effective and thereafter shall promptly notify such holders when the registration statement is effective
again and available for the sale of the Warrant Shares or Option Warrant Shares (it being understood and agreed that the foregoing
shall not limit the ability of the Company to issue, or any holder thereof to sell, any of the Warrant Shares or Option Warrant
Shares in compliance with applicable federal and state securities laws).
ARTICLE
V.
DEFAULT
BY UNDERWRITERS
If
on the Closing Date or any Option Closing Date, if any, any Underwriter shall fail to purchase and pay for the portion of the
Closing Securities or Option Securities, as the case may be, which such Underwriter has agreed to purchase and pay for on such
date (otherwise than by reason of any default on the part of the Company), the Representative, or if the Representative is the
defaulting Underwriter, the non-defaulting Underwriters, shall use commercially reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon
and upon the terms set forth herein, the Closing Securities or Option Securities, as the case may be, which the defaulting Underwriter
or Underwriters failed to purchase. If during such 36 hours the Representative shall not have procured such other Underwriters,
or any others, to purchase the Closing Securities or Option Securities, as the case may be, agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of Closing Securities or Option Securities, as the case may be,
with respect to which such default shall occur does not exceed 10% of the Closing Securities or Option Securities, as the case
may be, covered hereby, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Closing
Securities or Option Securities, as the case may be, which they are obligated to purchase hereunder, to purchase the Closing Securities
or Option Securities, as the case may be, which such defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of Closing Securities or Option Securities, as the case may be, with respect to which such default shall occur
exceeds 10% of the Closing Securities or Option Securities, as the case may be, covered hereby, the Company or the Representative
will have the right to terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company
except to the extent provided in Article VI hereof. In the event of a default by any Underwriter or Underwriters, as set forth
in this Article V, the applicable Closing Date may be postponed for such period, not exceeding seven days, as the Representative,
or if the Representative is the defaulting Underwriter, the non-defaulting Underwriters, may determine in order that the required
changes in the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter” includes
any Person substituted for a defaulting Underwriter. Any action taken under this Section shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this Agreement.
ARTICLE
VI.
INDEMNIFICATION
6.1 Indemnification
of the Underwriters. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless the Underwriters,
and each dealer selected by each Underwriter that participates in the offer and sale of the Securities (each a “Selected
Dealer”) and each of their respective directors, officers and employees and each Person, if any, who controls such Underwriter
or any Selected Dealer (“Controlling Person”) within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to
any and all reasonable legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, whether arising out of any action between such Underwriter and the Company or
between such Underwriter and any third party or otherwise) to which they or any of them may become subject under the Securities
Act, the Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of
or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) any Preliminary Prospectus,
if any, the Registration Statement or the Prospectus (as from time to time each may be amended and supplemented); (ii) any materials
or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering
of the Securities, including any “road show” or investor presentations made to investors by the Company (whether in
person or electronically); or (iii) any application or other document or written communication (in this Article VI, collectively
called “application”) executed by the Company or based upon written information furnished by the Company in
any jurisdiction in order to qualify the Securities under the securities laws thereof or filed with the Commission, any state
securities commission or agency, Trading Market or any securities exchange; or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such statement or omission was made in reliance upon and in conformity with written
information furnished to the Company with respect to the applicable Underwriter by or on behalf of such Underwriter expressly
for use in any Preliminary Prospectus, if any, the Registration Statement or Prospectus, or any amendment or supplement thereto,
or in any application, as the case may be. With respect to any untrue statement or omission or alleged untrue statement or omission
made in the Preliminary Prospectus, if any, the indemnity agreement contained in this Section 6.1 shall not inure to the benefit
of an Underwriter to the extent that any loss, liability, claim, damage or expense of such Underwriter results from the fact that
a copy of the Prospectus was not given or sent to the Person asserting any such loss, liability, claim or damage at or prior to
the written confirmation of sale of the Securities to such Person as required by the Securities Act and the rules and regulations
thereunder, and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus
was a result of non-compliance by the Company with its obligations under this Agreement. The Company agrees promptly to notify
each Underwriter of the commencement of any litigation or proceedings against the Company or any of its officers, directors or
Controlling Persons in connection with the issue and sale of the Public Securities or in connection with the Registration Statement
or Prospectus.
6.2 Procedure.
If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be
sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case
may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense
of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected
Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall
have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the
expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense
of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the
Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those
available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of
the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm
of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne
by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling
Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any
settlement of such action which approval shall not be unreasonably withheld.
6.3 Indemnification
of the Company. Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, its directors,
officers and employees and agents who control the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act against any and all loss, liability, claim, damage and expense described in the foregoing indemnity from the
Company to such Underwriter, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements
or omissions made in any Preliminary Prospectus, if any, the Registration Statement or Prospectus or any amendment or supplement
thereto or in any application, in reliance upon, and in strict conformity with, written information furnished to the Company with
respect to such Underwriter by or on behalf of such Underwriter expressly for use in such Preliminary Prospectus, if any, the
Registration Statement or Prospectus or any amendment or supplement thereto or in any such application. In case any action shall
be brought against the Company or any other Person so indemnified based on any Preliminary Prospectus, if any, the Registration
Statement or Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought
against such Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each other
Person so indemnified shall have the rights and duties given to such Underwriter by the provisions of this Article VI.
Notwithstanding the provisions of this Section 6.3, no Underwriter shall be required to indemnify the Company for any amount in
excess of the underwriting discounts and commissions applicable to the Securities purchased by such Underwriter. The Underwriters’
obligations in this Section 6.3 to indemnify the Company are several in proportion to their respective underwriting obligations
and not joint.
6.4 Contribution.
(a) Contribution
Rights. In order to provide for just and equitable contribution under the Securities Act in any case in which (i) any Person
entitled to indemnification under this Article VI makes a claim for indemnification pursuant hereto but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial
of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Article
VI provides for indemnification in such case, or (ii) contribution under the Securities Act, the Exchange Act or otherwise may
be required on the part of any such Person in circumstances for which indemnification is provided under this Article VI, then,
and in each such case, the Company and each Underwriter, severally and not jointly, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and such
Underwriter, as incurred, in such proportions that such Underwriter is responsible for that portion represented by the percentage
that the underwriting discount appearing on the cover page of the Prospectus Supplement bears to the initial offering price appearing
thereon and the Company is responsible for the balance; provided, that, no Person guilty of a fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each director, officer and employee of such Underwriter or the Company,
as applicable, and each Person, if any, who controls such Underwriter or the Company, as applicable, within the meaning of Section
15 of the Securities Act shall have the same rights to contribution as such Underwriter or the Company, as applicable. Notwithstanding
the provisions of this Section 6.4, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Securities purchased by such Underwriter. The Underwriters’ obligations in this Section
6.4 to contribute are several in proportion to their respective underwriting obligations and not joint.
(b) Contribution
Procedure. Within fifteen days after receipt by any party to this Agreement (or its representative) of notice of the commencement
of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another
party (“contributing party”), notify the contributing party of the commencement thereof, but the failure to
so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party
or its representative of the commencement thereof within the aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party similarly notified. Any such contributing party
shall not be liable to any party seeking contribution on account of any settlement of any claim, action or proceeding affected
by such party seeking contribution without the written consent of such contributing party. The contribution provisions contained
in this Section 6.4 are intended to supersede, to the extent permitted by law, any right to contribution under the Securities
Act, the Exchange Act or otherwise available.
ARTICLE
VII.
MISCELLANEOUS
7.1 Termination.
(a) Termination
Right. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any
domestic or international event or act or occurrence has materially disrupted, or in its opinion will in the immediate future
materially disrupt, general securities markets in the United States; or (ii) if trading on any Trading Market shall have been
suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction,
or (iii) if the United States shall have become involved in a new war or an increase in major hostilities, or (iv) if a banking
moratorium has been declared by a New York State or federal authority, or (v) if a moratorium on foreign exchange trading has
been declared which materially adversely impacts the United States securities markets, or (vi) if the Company shall have sustained
a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether
or not such loss shall have been insured, will, in the Representative’s opinion, make it inadvisable to proceed with the
delivery of the Securities, or (vii) if the Company is in material breach of any of its representations, warranties or covenants
hereunder, or (viii) if the Representative shall have become aware after the date hereof of such a material adverse change in
the conditions of the Company, or such adverse material change in general market conditions as in the Representative’s judgment
would make it impracticable to proceed with the offering, sale and/or delivery of the Securities or to enforce contracts made
by the Underwriters for the sale of the Securities.
(b) Expenses.
In the event this Agreement shall be terminated pursuant to Section 7.1(a), within the time specified herein or any extensions
thereof pursuant to the terms herein, the Company shall be obligated to pay to the Representative its actual and accountable out
of pocket expenses related to the transactions contemplated herein then due and payable, including the fees and disbursements
of EGS up to $25,000 (provided, however, that such expense cap in no way limits
or impairs the indemnification and contribution provisions of this Agreement).
(c) Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement,
and whether or not this Agreement is otherwise carried out, the provisions of Article VI shall not be in any way effected by such
election or termination or failure to carry out the terms of this Agreement or any part hereof.
7.2 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, Preliminary Prospectus Supplement,
any Prospectus Supplement and the Prospectus, contain the entire understanding of the parties with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which
the parties acknowledge have been merged into such documents, exhibits and schedules.
7.3 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number or email set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New
York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number or email as set forth on the signature pages attached hereto on a day that is
not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the
party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages attached hereto.
7.4 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Representative. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right.
7.5 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
7.6 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted
assigns.
7.7 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any action, suit or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either
party shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then, in addition to the
obligations of the Company under Article VI, the prevailing party in such action, suit or proceeding shall be reimbursed by the
other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
7.8 Survival.
The representations and warranties contained herein shall survive the Closing and the Option Closing, if any, and the delivery
of the Securities.
7.9 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being
understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
7.10 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
7.11 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Underwriters
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages
may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents
and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy
at law would be adequate.
7.12 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking
of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken
or such right may be exercised on the next succeeding Business Day.
7.13 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction
Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and
every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after
the date of this Agreement.
7.14 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO
THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVE FOREVER ANY
RIGHT TO TRIAL BY JURY.
(Signature
Pages Follow)
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
|
AMEDICA CORPORATION |
|
|
|
|
By:
|
/s/ B. Xxxxx Xxx |
|
|
Name:
B. Xxxxx Xxx |
|
|
Title: President & CEO |
Address
for Notice:
Address
for Notice:
0000
Xxxx 0000 Xxxxxx
Xxxx
Xxxx Xxxx, XX 00000
Attention:
President
Copy
to:
Xxxxxx
& Xxxxxxx LLP
Xxxxxx
Building
000
Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxx Xxxx, XX 00000-0000
Attention:
Xxxxx Xxxx
Accepted
on the date first above written.
MAXIM
GROUP LLC
As
the Representative of the several
Underwriters
listed on Schedule I
By:
Maxim Group LLC
By: |
/s/ Xxxxxxxx X. Xxxxxx |
|
Name: |
Xxxxxxxx X. Xxxxxx |
|
Title: |
Executive Managing Director, Investment Banking |
|
Address
for Notice:
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxxx X. Xxxxxx
Copy
to:
Ellenoff
Xxxxxxxx & Schole LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxxx
SCHEDULE
I
Schedule
of Underwriters
Underwriter | |
Closing Shares | | |
Closing Warrants | | |
Shares of Common Stock Underlying Closing Warrants | | |
Closing Purchase Price | |
| |
| | | |
| | | |
| | | |
| | |
Maxim Group LLC | |
| 8,900,000 | | |
| 4,005,000 | | |
| 4,005,000 | | |
$ | 0.51 | |