Exhibit 1.1
Osmotica
Pharmaceuticals plc
Ordinary Shares
(par value $0.01 per share)
Controlled Equity OfferingSM
Sales Agreement
September 8, 2021
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Osmotica Pharmaceuticals plc,
an Irish public limited company (the “Company”), confirms its agreement (this “Agreement”)
with Cantor Xxxxxxxxxx & Co. (the “Agent”), as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it may at its sole discretion issue and sell through the Agent, up to $75,000,000 of ordinary shares (the
“Placement Shares”) of the Company, par value $0.01 per share (the “Ordinary Shares”);
provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement
Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered pursuant to the effective Registration Statement
(defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less
Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from
the Company’s authorized share capital), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under
Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary
Shares for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum
Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations
set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility
of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares
through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective
by the Securities and Exchange Commission (the “Commission”) on February 12, 2020, although nothing in
this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares.
The Company has filed, in
accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and
regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3
(File No. 333-236193), including a base prospectus, relating to certain securities, including the Placement Shares to be issued from
time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with
the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the
Registration Statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the
Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of
the prospectus included as part of the Registration Statement, as supplemented, by the Prospectus Supplement, relating to the Placement
Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to
time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement),
with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents
filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below)
subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of
such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration
Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included
in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus
or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under
the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es), is herein called the “Prospectus.”
Any reference herein to the
Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to
refer to and include the documents, if any, incorporated by reference therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement,
any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus
Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes
of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed
to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or
if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “XXXXX”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it
will notify the Agent by email notice (or other method mutually agreed to by the parties) of the number of Placement Shares
to be issued, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that may
be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), the
form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the
Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and
shall be addressed to each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may be
amended from time to time. The Placement Notice shall be effective unless and until (i) the Agent declines to accept the terms
contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares thereunder have been
sold, (iii) the Company suspends or terminates the Placement Notice or (iv) this Agreement has been terminated under the
provisions of Section 12. The amount of any discount, commission or other compensation to be paid by the Company to
Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule
2. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with
respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Agent and the Agent
does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and
herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the
Placement Notice will control.
3. Sale
of Placement Shares by the Agent. Subject to the provisions of Section 5(a), the Agent, for the period specified in the
Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state
and federal laws, rules and regulations and the rules of the Nasdaq Global Select Market (the “Exchange”),
to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Agent
will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day,
the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds
(as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 5(b))
from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement Shares
by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Securities
Act Regulations, including sales made directly on or through the Exchange or any other existing trading market for the Ordinary Shares,
in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or
any other method permitted by law. “Trading Day” means any day on which Ordinary Shares are traded on the Exchange.
4. Suspension
of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each of
the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any
of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by email
correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares
(a “Suspension”); provided, however, that such Suspension shall not affect or impair any
party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a
Suspension is in effect any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of
certificates, opinions, or comfort letters to the Agent, shall be waived. Each of the parties agrees that no such notice under this Section 4
shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such
Schedule may be amended from time to time.
5. Sale
and Delivery to the Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Placement Shares up to the amount specified, and otherwise in accordance with the terms
of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful
in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if
it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent
with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement
and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except
as otherwise agreed by the Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on
which such sales are made (each, a “Settlement Date”). The Agent shall notify the Company of each sale of Placement
Shares no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement Shares
hereunder. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the
“Net Proceeds”) will be equal to the aggregate sales price received by the Agent, after deduction for (i) the
Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof,
and (ii) any transaction fees imposed by any Governmental Authority in respect of such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided the Agent shall
have given the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually
agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable
form. On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated by the
Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver Placement Shares on a Settlement Date, the Company agrees that in addition to and in no way
limiting the rights and obligations set forth in Section 10(a) hereto, it will (i) hold the Agent harmless
against any loss, claim, damage, or expense (including reasonable and documented out-of-pocket legal fees and expenses), as
incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay
to the Agent any commission, discount, or other compensation to which it would otherwise have been entitled absent such default.
(d) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount and (B)
the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized
committee thereof or a duly authorized executive committee, and notified to the Agent in writing. Under no circumstances shall the Company
cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized
from time to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee.
Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares sold pursuant to this
Agreement to exceed the Maximum Amount.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below):
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply
with the applicable conditions set forth in Form S-3 (including General Instructions I.A and I.B) under the Securities Act. The
Registration Statement has been filed with the Commission and has been declared effective by the Commission under the Securities
Act. The Prospectus Supplement will name the Agent as the agent in the section entitled “Plan of Distribution.” The
Company has not received, and has no notice of, any order of the Commission preventing or suspending the use of the Registration
Statement or threatening or instituting proceedings for that purpose. The offer and sale of Placement Shares as contemplated hereby
meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any contracts or
other documents that are required to be filed as exhibits to the Registration Statement have been so filed. Copies of the
Registration Statement, the Prospectus, and any such amendments or supplements and all documents incorporated by reference therein
that were filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through XXXXX,
to the Agent and its counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date and
completion of the distribution of the Placement Shares, will not distribute any offering material in connection with the offering or
sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus (as
defined below). The Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and is currently listed
on the Exchange under the trading symbol “OSMT.” The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Ordinary Shares under the Exchange Act, delisting the Ordinary Shares from the
Exchange, nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such
registration or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements of the
Exchange.
(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or
supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with
the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus together with any amendment and supplement thereto relating to
the Placement Shares, on the date thereof and at each Applicable Time (defined below), did not or will not include an 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. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Agent specifically for use in the preparation thereof.
(c) Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are filed with the Commission under the Securities Act or the Exchange Act or became or become effective
under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable.
(d) The
Sales Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(e) At-the-Market
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the market” or
continuous equity transaction.
(f) Authorization
of the Offered Shares. The Offered Shares have been duly authorized and, when issued and delivered by the Company against payment
therefor pursuant to this Agreement, will be validly issued, fully paid and not subject to calls for any additional payments (nonassessable),
and the issuance and sale of the Offered Shares shall not violate any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Offered Shares.
(g) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement that
have not been complied with or waived, as applicable.
(h) No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the
Prospectus: (i) there has been no material adverse change, or any development that would reasonably be expected to result in a material
adverse change, in the financial condition or in the earnings, business, properties, operations, assets, liabilities or prospects of the
Company and its subsidiaries, considered as one entity (any such change being referred to herein as a “Material Adverse Change”);
(ii) the Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligations, indirect,
direct or contingent, including without limitation any losses or interference with its business from fire, explosion, flood, earthquakes,
accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order
or decree, that are material, individually or in the aggregate, to the Company and its subsidiaries, considered as one entity, or has
entered into any transactions not in the ordinary course of business; and (iii) there has not been any material decrease in the share
capital or any material increase in any short-term or long-term indebtedness of the Company or its subsidiaries and there has been no
dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other subsidiaries,
by any of the Company’s subsidiaries on any class of share capital, or any repurchase or redemption by the Company or any of its
subsidiaries of any class of share capital.
(i) Independent
Accountants. Ernst & Young LLP, which has expressed its opinion with respect to certain of the financial statements
(which term as used in this Agreement includes the related notes thereto) filed with the Commission as a part of the Registration Statement,
the Time of Sale Prospectus and the Prospectus, is an independent registered public accounting firm as required by the Securities Act,
and the rules of the Public Company Accounting Oversight Board (“PCAOB”) on the basis disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(j) Financial
Statements. The financial statements filed with the Commission as a part of the Registration Statement, the Time of Sale
Prospectus and the Prospectus present fairly, in all material respects, the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the results of their operations, changes in shareholders’ equity and cash
flows for the periods specified. Such financial statements have been prepared, in all material respects, in conformity with
generally accepted accounting principles as applied in the United States on a consistent basis throughout the periods involved,
except as may be expressly stated in the related notes thereto. The interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement fairly presents the information called for in all material
respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except for
such requirements as have been waived in writing by the Commission, no other financial statements or supporting schedules are
required to be included in the Registration Statement, the Time of Sale Prospectus or the Prospectus. The financial data set forth
in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus under the captions “Prospectus
Summary—Summary Financial Data” and “Capitalization” fairly present, in all material respects, the
information set forth therein on a basis consistent with that of the audited financial statements contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus. All disclosures contained in the Registration Statement or the Prospectus
and any free writing prospectus, that constitute non-GAAP financial measures (as defined by the rules and regulations under the
Securities Act and the Exchange Act) comply with Regulation G under the Exchange Act and Item 10(e) of Regulation S-K under the
Securities Act, as applicable.
(k) Company’s
Accounting System. The Company and each of its subsidiaries make and keep books and records that are accurate in all material
respects and maintain a system of internal accounting controls designed to, and which the Company believes is sufficient to, provide reasonable
assurance that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as
applied in the United States and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; (iv) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible
Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus
fairly presents the information called for in all material respects and is prepared in accordance with the Commission's rules and
guidelines applicable thereto.
(l) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting. The Company has
established and maintains disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Securities
Exchange Act of 1934, as amended), which (i) are designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company’s principal executive officer and its principal
financial officer by others within those entities; and (ii) are effective in all material respects to perform the functions for
which they were established. Except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, since the end of the Company’s most recent audited fiscal year, there has been no material weakness in the
Company’s internal control over financial reporting (whether or not remediated) and there has been no change in the
Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(m) Due
Incorporation of the Company. The Company has been duly incorporated and is validly existing as a public limited company under
the laws of Ireland and has the corporate power and authority to own, lease and operate its properties and to conduct its business as
described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and to enter into and perform its obligations
under this Agreement. The Company is duly qualified to transact business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure
to be so qualified or in good standing would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect.
(n) Subsidiaries. Each
of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities Act)
has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, partnership or limited liability
company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization and has the power and
authority (corporate or other) to own, lease and operate its properties and to conduct its business as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus. Each of the Company’s subsidiaries is duly qualified as a foreign corporation, partnership
or limited liability company, as applicable, to transact business and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified
or to be in good standing would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
All of the issued and outstanding share capital or other equity or ownership interests of each of the Company’s subsidiaries have
been duly authorized and validly issued, are fully paid and nonassessable (or equivalent in the applicable jurisdiction of organization)
and are owned by the Company (other than any directors’ qualifying shares where applicable), directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim. The Company does not own or control, directly
or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s
most recently filed Annual Report on Form 10-K incorporated by reference into the Registration Statement.
(o) Capitalization
and Other Share Capital Matters. The authorized, issued and outstanding share capital of the Company is as set forth in the
Registration Statement, the Time of Sale Prospectus and the Prospectus under the caption “Capitalization” (other than
for subsequent issuances, if any, pursuant to employee benefit plans, or upon the exercise of outstanding options or warrants, in
each case described in the Registration Statement, the Time of Sale Prospectus and the Prospectus). The Shares (including the
Offered Shares) conform in all material respects to the description thereof contained in the Time of Sale Prospectus. All of the
issued and outstanding Shares have been duly authorized and validly issued, are fully paid and not subject to calls for any
additional payments (nonassessable). None of the outstanding Shares was issued in violation of any preemptive rights, rights
of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or
outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any share capital of the Company or any of its subsidiaries other than those
described in the Registration Statement, the Time of Sale Prospectus and the Prospectus. The descriptions of the Company’s
share option, share bonus and other share plans or arrangements, and the options or other rights granted thereunder, set forth in
the Registration Statement, the Time of Sale Prospectus and the Prospectus accurately and fairly presents, in all material respects,
the information required to be shown with respect to such plans, arrangements, options and rights.
(p) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries
is in violation of its constitution, charter or by-laws, partnership agreement or operating agreement or similar organizational
documents, as applicable, or is in default (or, with the giving of notice or lapse of time, would be in default)
(“Default”) under any indenture, loan, credit agreement, note, lease, license agreement, contract, franchise or
other instrument (including, without limitation, any pledge agreement, security agreement, mortgage or other instrument or agreement
evidencing, guaranteeing, securing or relating to indebtedness) to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of their respective properties or assets are subject (each, an
“Existing Instrument”), except for such Defaults as would not reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the financial condition, earnings, business, properties, operations, assets,
liabilities or prospects of the Company and its subsidiaries, considered as one entity (a “Material Adverse
Effect”). The Company’s execution, delivery and performance of this Agreement, consummation of the transactions
contemplated hereby and by the Registration Statement, the Time of Sale Prospectus and the Prospectus and the issuance and sale of
the Offered Shares (including the use of proceeds from the sale of the Offered Shares as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) (i) have been duly authorized
by all necessary corporate action and will not result in any violation of the provisions of the constitution, charter or by-laws,
partnership agreement or operating agreement or similar organizational documents, as applicable, of the Company or any of its
subsidiaries, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument and
(iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to
the Company or any of its subsidiaries, except, in the case of clauses (ii) and (iii) above, as would not reasonably be
expected individually or in the aggregate, to have a Material Adverse Effect. No consent, approval, authorization or other order of,
or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the
Company’s execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby and
by the Registration Statement, the Time of Sale Prospectus and the Prospectus, except such as have been obtained or made by the
Company and are in full force and effect under the Securities Act and such as may be required under applicable state securities or
blue sky laws, the laws of the Republic of Ireland or FINRA. As used herein, a “Debt Repayment Triggering Event”
means any event or condition which gives, or with the giving of notice or lapse of time would give, the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(q) Compliance
with Laws. The Company and its subsidiaries are in compliance with all applicable laws, rules and regulations, except where
failure to be so in compliance would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(r) No
Material Actions or Proceedings. Except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and
the Prospectus, (i) there is no action, suit or proceeding brought by or before any legal, regulatory or governmental entity now
pending or, to the knowledge of the Company, threatened, against the Company or any of its subsidiaries, which would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect or materially and adversely affect the consummation of the transactions
contemplated by this Agreement or the performance by the Company of its obligations hereunder, and (ii) the aggregate of all
pending legal, regulatory or governmental proceedings to which the Company or any such subsidiary is a party or of which any of their
respective properties or assets is the subject, including ordinary routine litigation incidental to the business, if determined adversely
to the Company, would not reasonably be expected to have a Material Adverse Effect. No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company, is threatened or imminent.
(s) Intellectual
Property. The Company or its subsidiaries own, or have obtained valid and enforceable licenses for, the
inventions, patent applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual
property described in the Registration Statement, the Time of Sale Prospectus and the Prospectus as being owned or licensed by them
and which, to the Company’s knowledge, are necessary for the conduct of their respective businesses as currently conducted or
as currently proposed to be conducted (collectively, “Intellectual Property”). Except as otherwise disclosed in
the Registration Statement, Time of Sale Prospectus or the Prospectus, to the Company’s knowledge, none of the Intellectual
Property has been adjudged invalid or unenforceable in whole or in part, and the Company is unaware of any facts which would form a
reasonable basis for a determination that any issued patent within the Intellectual Property is unenforceable or cannot be asserted
in good faith. To the Company’s knowledge: (i) there are no third parties who have rights to any Intellectual Property,
except for the rights of third-party licensors, including customary reversionary rights, with respect to Intellectual Property that
is licensed to the Company or one or more of its subsidiaries; and (ii) there is no infringement by third parties of any
Intellectual Property. Except as otherwise disclosed in the Registration Statement, Time of Sale Prospectus or the Prospectus, to
the Company’s knowledge: (i) there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property
(B) challenging the validity, enforceability or scope of any Intellectual Property; or (C) asserting that the Company or
any of its subsidiaries infringes, misappropriates or otherwise violates, or would, upon the commercialization of any product or
service described in the Registration Statement, the Time of Sale Prospectus or the Prospectus as under development, infringe,
misappropriate or otherwise violate, any patent, trademark, trade name, service name, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any facts which would form a reasonable basis for such others to bring and maintain
any such action, suit, proceeding or claim, except as would not reasonably be expected to have a Material Adverse Effect;
(ii) none of the technology employed by the Company and its subsidiaries has been obtained or is being used by the Company or
its subsidiaries in violation of any contractual obligation binding on the Company or its subsidiaries or, to the Company’s
knowledge, upon any officers, directors or employees of the Company or its subsidiaries; and (iii) the Company and its
subsidiaries have complied in all material respects with the terms of each agreement pursuant to which Intellectual Property has
been licensed to the Company or any subsidiary, and all such agreements are in full force and effect.
(t) All
Necessary Permits, etc. The Company and its subsidiaries possess such valid and current certificates, authorizations, exemptions,
approvals, licenses, clearances or permits required by state, federal or foreign regulatory agencies or bodies to conduct their respective
businesses as currently conducted and as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus (“Permits”),
except where the failure to possess such certificate, authorization or permit would not reasonably be expected, to have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries is in violation of, or in default under, any of the Permits or has received any
notice of proceedings relating to the revocation or modification of, or non-compliance with, any such Permit, except where the failure
to be in compliance would not reasonably be expected, to have a Material Adverse Effect.
(u) Title
to Properties. The Company and its subsidiaries have good and marketable title to all of the real and personal property and other
assets reflected as owned in the financial statements referred to in Section (i) above (or elsewhere in the Registration Statement,
the Time of Sale Prospectus or the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances,
equities, adverse claims and other defects, except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus
or as would not reasonably be expected, individually or in the aggregate, to materially affect the value of such property or materially
interfere with the use thereof. The real property, improvements, equipment and personal property held under lease by the Company or any
of its subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company or such subsidiary.
(v) Tax
Law Compliance. The Company and its subsidiaries have filed all necessary federal, state and foreign tax returns or have
properly requested extensions thereof, except where failure to file would not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Change. All taxes that are due and payable by the Company and its subsidiaries, and any
related or similar assessment, fine or penalty levied against any of them, have been paid other than those (i) currently
payable without penalty or interest, (ii) being contested in good faith and by appropriate proceedings and for which adequate
accruals have been established in accordance with generally accepted accounting principles of the United States
(“GAAP”) or (iii) as would not reasonably be expected to, individually or in the aggregate, result in a
Material Adverse Change. To the Company’s knowledge, the Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section (i) above in respect of all federal, state and foreign income,
franchise and other material taxes for all periods as to which the tax liability of the Company or any of its subsidiaries has not
been finally determined. Other than purchase and sales by the Agent acting as a principal making sales other than through the facilities of The Depository Trust
Company, no stamp duty or other issuance or transfer taxes or duties are payable in connection with (a) the
allotment, issue and delivery of the Placement Shares by the Company to the initial subscribers of those Placement Shares in
accordance with the terms of this Agreement and the Prospectus; or (b) otherwise in connection with the making or
implementation of the Placement; or (c) in connection with the execution and delivery of this Agreement.
(w) Insurance. Except
as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, each of the Company and its
subsidiaries are insured by recognized and reputable institutions with policies in such amounts and with such deductibles and covering
such risks as the Company reasonably believes would generally be deemed adequate and customary for its businesses. The Company is not
aware of a reason why it or any of its subsidiaries will not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not reasonably be expected to have a Material Adverse Effect.
(x) Compliance
with Environmental Laws. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect: (i) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental
Laws”); (ii) there are no pending or, to the knowledge of the Company, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries; and (iv) there are no orders for clean-up or remediation, or
an action, suit or proceeding pending or, to the knowledge of the Company, threatened, by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(y) ERISA
Compliance. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect,
(i) the Company and its subsidiaries have maintained each “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
that is established or maintained by the Company or its subsidiaries in compliance with ERISA, (ii) no “reportable event”
(as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established
or maintained by the Company or its subsidiaries, (iii) no “employee benefit plan” established or maintained by the Company
or its subsidiaries, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities”
(as defined under ERISA), and (iv) neither the Company nor its subsidiaries has incurred or reasonably expects to incur any liability
under (x) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (y) Sections 412,
4971 or 4975 of the Internal Revenue Code of 1986, as amended (the “Code”). Each employee benefit plan established
or maintained by the Company or its subsidiaries that is intended to be qualified under Section 401(a) of the Code has been
determined by the IRS to be so qualified and, to the knowledge of the Company, nothing has occurred since the date of such determination,
whether by action or failure to act, which would reasonably be expected to cause the loss of such qualification.
(z) Company
Not an “Investment Company.” The Company is not, and will not be, either after receipt of payment for the Offered
Shares or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement,
the Time of Sale Prospectus or the Prospectus, required to register as an “investment company” under the Investment Company
Act of 1940, as amended (the “Investment Company Act”).
(aa) No
Price Stabilization or Manipulation. Neither the Company nor any of its subsidiaries has taken, directly or indirectly, any action
designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the price of the Shares, whether
to facilitate the sale or resale of the Offered Shares or otherwise.
(bb) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement, the Time
of Sale Prospectus or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all
material respects. To the extent required, the Company has obtained the written consent to the use of such data from such sources.
(cc) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge,
any employee or agent of the Company or any subsidiary, has made any contribution or other payment to any official of, or candidate for,
any federal, state or foreign office in violation of any applicable law.
(dd) Foreign
Corrupt Practices Act. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee, controlled affiliate or other person acting on behalf of the Company or any of its subsidiaries has, in
the course of its actions for, or on behalf of, the Company or any of its subsidiaries (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or
indirect unlawful payment to any domestic government official, “foreign official” (as defined in the U.S. Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the
“FCPA”) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA or
any applicable non-U.S. anti-bribery statute or regulation; or (iv) made any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any such domestic government official, foreign official or employee; and the Company and its
subsidiaries and, to the knowledge of the Company, the Company’s controlled affiliates have conducted their respective
businesses in such a manner such that they are in compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(ee) Money
Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar
applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (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 of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(ff) Sanctions.
(i) The Company represents that, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director,
officer, any employee, agent, controlled affiliate or person acting on behalf of the Company, is a government, individual, or entity (in
this paragraph (ff), “Person”) that is, or is owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authorities, including,
without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions
Evaders List (as amended, collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory
(including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region of the Ukraine) (the “Sanctioned
Countries”)).
(ii) The
Entity represents and covenants that it will not, directly or indirectly knowingly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions or is a Sanctioned Country; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(iii) The
Company represents and covenants that, except as detailed in the Registration Statement and the Prospectus, for the past 5 years, it has
not engaged in, is not now knowingly engaging in, and will not knowingly engage in, any dealings or transactions with any Person, or in
any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned
Country.
(gg) Brokers. Except
pursuant to this Agreement, the Company has not entered into any written agreement with any broker, finder or other party that would entitle
such party to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions
contemplated by this Agreement.
(hh) Emerging
Growth Company Status. If applicable, from the first date on which the Company engaged in any Section 5(d) Written Communication
or any Section 5(d) Oral Communication through the date hereof, the Company has been and is an “emerging growth company,”
as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”).
(ii) Clinical
Data and Regulatory Compliance. The preclinical tests and clinical trials, and other studies (collectively,
“studies”) that are described in, or the results of which are referred to in, the Registration Statement, the Time of
Sale Prospectus or the Prospectus were and, if still pending, are being conducted in all material respects in accordance with the
protocols, procedures and controls designed and approved for such studies and with standard medical and scientific research
procedures; each description of the results of such studies is accurate and complete in all material respects and fairly presents
the data derived from such studies, and the Company and its subsidiaries have no knowledge of any other studies the results of which
are inconsistent with, or otherwise call into question, the results described or referred to in the Registration Statement, the Time
of Sale Prospectuses or the Prospectus; the Company and its subsidiaries have made all such filings and obtained all such Permits as
may be required by the Food and Drug Administration of the U.S. Department of Health and Human Services or any committee thereof or
from any other U.S. or foreign government or drug or medical device regulatory agency, or health care facility Institutional Review
Board (collectively, the “Regulatory Agencies”), except where such failure or non-compliance would not reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect; neither the Company nor any of its
subsidiaries has received any notice of, or correspondence from, any Regulatory Agency requiring the termination, suspension or
modification of any clinical trials that are described or referred to in the Registration Statement, the Time of Sale Prospectus or
the Prospectus; and the Company and its subsidiaries have each operated and currently are in compliance in all material respects
with all applicable rules, regulations and policies of the Regulatory Agencies.
(jj) Compliance
with Health Care Laws. The Company and its subsidiaries are, and at all times have been, in compliance with all applicable Health
Care Laws, except where the failure to be in compliance would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect. For purposes of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. §§ 301 et seq.) and the regulations promulgated thereunder; (ii) all applicable
federal, state, local and all applicable foreign health care related fraud and abuse laws, including, without limitation, the U.S. Anti-Kickback
Statute (42 U.S.C. Section 1320a-7b(b)), the U.S. Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h), the U.S. Civil
False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)), all criminal laws
relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health care fraud criminal
provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section 1320d
et seq.), the exclusion laws (42 U.S.C. § 1320a-7), the civil monetary penalties law (42 U.S.C. § 1320a-7a), HIPAA, as amended
by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.), and the regulations
promulgated pursuant to such statutes; (iii) Medicare (Title XVIII of the Social Security Act); (iv) Medicaid (Title XIX of
the Social Security Act); (v) the Controlled Substances Act (21 U.S.C. §§ 801 et seq.) and the regulations
promulgated thereunder; and (vi) any and all other applicable health care laws and regulations. Neither the Company nor, to the knowledge
of the Company, any subsidiary has received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any court or arbitrator or governmental or regulatory authority or third party alleging that any product
operation or activity is in material violation of any Health Care Laws, and, to the Company’s knowledge, no such claim, action,
suit, proceeding, hearing, enforcement, investigation, arbitration or other action is threatened. Neither the Company nor, to the knowledge
of the Company, any subsidiary is a party to or has any ongoing reporting obligations pursuant to any corporate integrity agreements,
monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any Regulatory Agency or other governmental
or regulatory authority. Additionally, neither the Company, its subsidiaries nor any of its respective employees, officers or directors
has been excluded, suspended or debarred from participation in any U.S. federal health care program or human clinical research or, to
the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other similar action that would reasonably
be expected to result in debarment, suspension, or exclusion.
(kk) Cybersecurity. Except
as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (a)(i) there has been no
security breach or other compromise of any of the Company’s and its subsidiaries’ information technology and computer
systems, networks, hardware, software, data (including any third party data maintained on behalf of them), equipment or technology
(collectively, “IT Systems and Data”) (ii) the Company has not been notified of, and has no knowledge of any
event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and
Data; (iii) the Company is presently in compliance with all applicable laws, statutes, rules or regulations relating to
the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access,
misappropriation or modification, except as would not, in the case of clauses (i), (ii) and (iii), individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and (b) the Company has implemented backup and disaster
recovery technology consistent in all material respects with generally accepted industry standards and practices.
(ll) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, to their knowledge, in material compliance with all applicable state
and federal data privacy and security laws and regulations, including without limitation HIPAA, CCPA, and the European Union General Data
Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”). The Company has
in place, and takes reasonably appropriate steps to ensure compliance in all material respects with their policies and procedures relating
to data privacy and security and the collection, storage, use, processing, disclosure, handling, and analysis of Personal Data and Confidential
Data (the “Policies”). The Company has taken reasonable steps to make all disclosures to users or customers required
by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have been inaccurate
or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies
that, to its knowledge, neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating
to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably
be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation,
or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation
or liability under any Privacy Law.
(mm) Agent
Purchases. The Company acknowledges and agrees that the Agent has informed the Company that the Agent may, to the extent
permitted under the Securities Act and the Exchange Act, purchase and sell Ordinary Shares for its own account while this Agreement
is in effect (except to the extent the Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless
principal” or in a similar capacity), provided, that (i) no such purchase or sales shall take place while a Placement Notice is in effect,
(ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agent and
(iii) the terms of any such purchases or sales by the Agent shall not be governed by this Agreement.
(nn) Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(oo) Dividend
Restrictions. No subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying dividends
to the Company, or from making any other distribution with respect to such subsidiary’s equity securities or from repaying to the
Company or any other subsidiary of the Company any amounts that may from time to time become due under any loans or advances to such
subsidiary from the Company or from transferring any property or assets to the Company or to any other subsidiary, except, in each case,
pursuant to the Company’s senior secured credit facilities or as otherwise described in or contemplated by the Registration Statement,
Time of Sales Prospectus or Prospectus or as restricted or prohibited under applicable laws.
Any certificate signed by
an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Shares is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agent promptly
of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been
filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus, other than documents
incorporated by reference, has been filed and of any request by the Commission for any amendment or supplement to the Registration
Statement or Prospectus or for additional information, (ii) the Company will prepare and file with the Commission, promptly
upon the Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, in the Agent’s
reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by the Agent
(provided, however, that the failure of the Agent to make such request shall not relieve the Company of any obligation
or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the Company in this
Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure to make such
filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company will
not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares unless a copy
thereof has been submitted to the Agent within a reasonable period of time before the filing and the Agent has not objected thereto
in good faith and with reasonable grounds (provided, however, that the failure of the Agent to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the
representations and warranties made by the Company in this Agreement and provided, further, that the only remedy the
Agent shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this
Agreement);(iv) the Company will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is
deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via
XXXXX; and (v) the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as
required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be
incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period
prescribed (the determination to file or not file any amendment or supplement with the Commission under this Section 7(a),
based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the
issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates (taking into
account any extensions available under the Exchange Act) all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange
Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B under the Securities Act, it
will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B
and to notify the Agent promptly of all such filings related to the Placement Shares. If during such period any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period
it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly
notify the Agent to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement the
Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance;
provided, however, that the Company may delay any such amendment or supplement if, in the reasonable judgment of the Company, it
is in the best interests of the Company to do so. Until such time as the Company shall have corrected such misstatement or omission or
effected such compliance, the Company shall not notify the Agent to resume the offering of Placement Shares.
(d) Listing
of Placement Shares. On or prior to the date of the first Placement Notice, the Company will use its commercially reasonable efforts
to cause the Placement Shares to be (i) approved for listing on the Exchange, subject only to notice of issuance, or (ii) the
Company shall have filed an application for listing of the Placement Shares on the Exchange.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the expense of the Company) copies
of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements
to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating to the
Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during such period
that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities as the
Agent may from time to time reasonably request and, at the Agent’s request, will also furnish copies of the Prospectus to each exchange
or market on which sales of the Placement Shares may be made; provided, however, that the Company shall not be required
to furnish any document (other than the Prospectus) to the Agent to the extent such document is available on XXXXX.
(f) Earning
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earning statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any rights to purchase or acquire,
Ordinary Shares during the period beginning on the second (2nd) Trading Day immediately prior to the date on which any Placement
Notice is delivered to Agent hereunder and ending on the second (2nd) Trading Day immediately following the final Settlement
Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended
prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly
or indirectly in any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any
option to sell or otherwise dispose of any Ordinary Shares (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Ordinary Shares, warrants or any rights to purchase or acquire, Ordinary Shares prior to the thirtieth
(30th) day immediately following the termination of this Agreement; provided, however, that such restrictions
will not be required in connection with the Company’s issuance or sale of (i) Ordinary Shares, options to purchase Ordinary
Shares or Ordinary Shares issuable upon the exercise of options, pursuant to any employee or director share option or benefits plan, share
ownership plan or dividend reinvestment plan (but
not Ordinary Shares subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect
or hereafter implemented, (ii) Ordinary Shares issuable upon conversion of securities or the exercise of warrants, options or other
rights in effect or outstanding, and disclosed in filings by the Company available on XXXXX or otherwise in writing to the Agent and (iii) Ordinary
Shares or securities convertible into or exchangeable for Ordinary Shares as consideration for mergers, acquisitions, other business combinations
or strategic alliances occurring after the date of this Agreement which are not issued for capital raising purposes.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agent promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agent or its representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents
and senior corporate officers, during regular business hours, as the Agent may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company agrees that on or prior to such dates as the Securities Act shall require,
the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under
the Securities Act (each and every filing date under Rule 424(b), a “Filing Date”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Shares sold through the Agent, the Net Proceeds to the Company and
the compensation payable by the Company to the Agent with respect to such Placement Shares, and (ii) deliver such number of copies
of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or
regulations of such exchange or market.
(l) Representation
Dates; Certificate. (1) On or prior to the date of the first Placement Notice and (2) each time the Company:
(i) files the Prospectus relating
to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of securities other
than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus
relating to the Placement Shares;
(ii) files an annual report on
Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material amendment
to the previously filed Form 10-K);
(iii) files its quarterly reports
on Form 10-Q under the Exchange Act; or
(iv) files a current report on
Form 8-K containing amended financial information (other than information “furnished” pursuant to Items 2.02 or 7.01
of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties
as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act (each date
of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation Date”);
the Company shall furnish the Agent (but in the
case of clause (iv) above only if the Agent reasonably determines that the information contained in such Form 8-K is material)
with a certificate dated the Representation Date, in the form and substance reasonably satisfactory to the Agent and its counsel, substantially
similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented. The requirement to provide a certificate under this Section 7(l) shall
be waived for any Representation Date occurring at a time at which no Placement Notice is pending or a Suspension is in effect, which
waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale of Placement Shares hereunder
(which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when a Suspension was in effect
and did not provide the Agent with a certificate under this Section 7(l), then before the Company delivers the instructions
for the sale of Placement Shares or the Agent sells any Placement Shares pursuant to such instructions, the Company shall provide the
Agent with a certificate in conformity with this Section 7(l) dated as of the date of the Placement Notice or the date
that the instructions for the sale of Placement Shares are issued.
(m) Legal
Opinion. (1) On or prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause to be furnished to the Agent a written opinion of Ropes
and Xxxx LLP (“Company Counsel”) and A&L Goodbody LLP (“Irish Counsel”), or other
counsel satisfactory to the Agent, in form and substance satisfactory to Agent and its counsel, substantially similar to the form previously
provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended
or supplemented; provided, however, the Company shall be required to furnish to Agent no more than one opinion hereunder
per calendar quarter; provided, further, that in lieu of such opinions for subsequent periodic filings under the Exchange
Act, counsel may furnish the Agent with a letter (a “Reliance Letter”) to the effect that the Agent may rely
on a prior opinion delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except
that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented
as of the date of the Reliance Letter).
(n) Comfort
Letter. (1) On or prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause its independent registered public accounting firm to furnish
the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet
the requirements set forth in this Section 7(n); provided, that if reasonably requested by the Agent, the Company shall
cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence of any material transaction
or event that necessitates the filing of pro forma, amended or revised financial statements, including the restatement of the Company’s
financial statements. The Comfort Letter from the Company’s independent registered public accounting firm shall be in a form and
substance satisfactory to the Agent, (i) confirming that they are an independent registered public accounting firm within the meaning
of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection
with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating
the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such
date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of
such letter.
(o) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or would reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Ordinary Shares or (ii) sell, bid for, or purchase Ordinary Shares in violation of Regulation M, or pay anyone
any compensation for soliciting purchases of the Placement Shares other than the Agent.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries
will be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,”
as such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity as agent
hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity as such)
will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act),
required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent,
to qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold,
under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to
maintain such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares; provided, however,
that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Placement Shares have been
so qualified or exempt, the Company will file such statements and reports as may be required by the laws of such jurisdiction to
continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the
Placement Shares.
(s) Xxxxxxxx-Xxxxx
Act. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted accounting principles and including those policies
and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions
and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit
the preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles,
(iii) that receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s
directors’ authorization, and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company and the Subsidiaries
will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx
Act, and the applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in
the reports that 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, including, without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to
the Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such periodic
reports are being prepared.
(t) Secretary’s
Certificate; Further Documentation. On or prior to the date of the first Placement Notice, the Company shall deliver to the
Agent a certificate of the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date,
certifying as to (i) the constitution of the Company, (ii) the Articles of Association of the Company, (iii) the
resolutions of the Board of Directors of the Company or a duly authorized committee of the Board of Directors authorizing the
execution, delivery and performance of this Agreement and the issuance of the Placement Shares and (iv) the incumbency of the
officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement. Within five
(5) Trading Days of each Representation Date, the Company shall have furnished to the Agent such further information,
certificates and documents as the Agent may reasonably request.
(u) Emerging
Growth Company Status. The Company will promptly notify the Agent if the Company ceases to be an Emerging Growth Company at any time
during the term of this Agreement.
8. Payment
of Expenses. The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing
or electronic delivery of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as the Agent
shall reasonably deem necessary, (ii) the preparation, issuance and delivery of the certificates, if any, for the Placement Shares
to the Agent, including any share or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the
sale, issuance or delivery of the Placement Shares to the Agent under this Agreement, (iii) the fees and disbursements of the counsel,
accountants and other advisors to the Company, (iv) the fees and expenses of the Agent including but not limited to the fees and
expenses of the counsel to the Agent, payable upon the execution of this Agreement, in an amount not to exceed $75,000 in connection with
the execution of this Agreement, and $15,000 for each program “refresh” executed pursuant to this Agreement, (v) the
qualification or exemption of the Placement Shares under state securities laws in accordance with the provisions of Section 7(r) hereof,
including filing fees, but excluding fees of the Agent’s counsel, (vi) the printing and delivery to the Agent of copies of
any Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto in such number as the Agent shall deem
necessary, (vii) the preparation, printing and delivery to the Agent of copies of the blue sky survey, in an amount not to exceed
$5,000, (ix) the fees and expenses of the transfer agent and registrar for the Ordinary Shares, (x) the filing and other fees
incident to any review by FINRA of the terms of the sale of the Placement Shares including the fees of the Agent’s counsel (subject
to the cap, set forth in clause (v) above), and (xi) the fees and expenses incurred in connection with the listing of the Placement
Shares on the Exchange.
9. Conditions
to Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance in all material respects
by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable
judgment, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) in all material respects of the following
additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the (i) resale of all
Placement Shares issued to the Agent and not yet sold by the Agent and (ii) sale of all Placement Shares contemplated to be issued
by any Placement Notice.
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the Commission or any other federal or state Governmental Authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state Governmental Authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event
that makes any material statement made in the Registration Statement or the Prospectus or any material document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration
Statement, the Prospectus or material document incorporated by reference so that, in the case of the Registration Statement, it will not
contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein not misleading and, that in the case of the Prospectus, it will not contain an 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 the light of the circumstances
under which they were made, not misleading.
(c) No
Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinion is material, or
omits to state a fact that in the Agent’s reasonable opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any Material Adverse Effect or any development that would reasonably be expected to cause a Material Adverse Effect, or
a downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by
any rating organization or a public announcement by any rating organization that it has under surveillance or review its rating of any
of the Company’s securities (other than asset backed securities), the effect of which, in the case of any such action by a rating
organization described above, in the reasonable judgment of the Agent (without relieving the Company of any obligation or liability it
may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on
the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinions. The Agent shall have received the opinions of Company Counsel required to be delivered pursuant to Section 7(m) on
or before the date on which such delivery of such opinions is required pursuant to Section 7(m).
(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or
before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(n).
(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on or
before the date on which delivery of such certificate is required pursuant to Section 7(l).
(h) No
Suspension. Trading in the Ordinary Shares shall not have been suspended on the Exchange and the Ordinary Shares shall not have been
delisted from the Exchange.
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company
shall have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents as the Agent
may reasonably request.
(j) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the
issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(k) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice of
issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to,
the issuance of any Placement Notice and the Exchange shall have reviewed such application and not provided any objections thereto.
(l) FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable
to the Agent as described in the Prospectus.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 12(a).
10. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective partners, members,
directors, officers, employees and agents and each person, if any, who controls the Agent or any affiliate within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any
related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company, which
consent shall not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above,
provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agent
Information (as defined below).
(b) Agent
Indemnification. Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who
signed the Registration Statement, and each person, if any, who controls 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 indemnity contained in Section 10(a), as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto), the Prospectus (or any
amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with information relating to the Agent and furnished to the Company in writing by the Agent expressly for use therein.
The Company hereby acknowledges that the only information that the Agent has furnished to the Company expressly for use in the
Registration Statement, the Prospectus or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the
statements set forth in the first two sentences of the eighth paragraph, and the tenth and eleventh paragraphs under the caption
“Plan of Distribution” in the Prospectus (the “Agent Information”).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of
notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or
parties under this Section 10, notify each such indemnifying party of the commencement of such action, enclosing a copy
of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from
(i) any liability that it might have to any indemnified party otherwise than under this Section 10 and
(ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 10
unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any other legal expenses except as provided below and except for
the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to
those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact
employed counsel to assume the defense of such action or counsel reasonably satisfactory to the indemnified party, in each case,
within a reasonable time after receiving notice of the commencement of the action; in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more than one separate firm (plus local counsel) admitted to
practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event, be
liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the
prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated by this Section 10 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an express and unconditional
release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability
arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 10(a)(ii) effected without its written consent if (1) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and
(3) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date
of such settlement.
(e) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 10 is applicable in accordance with its terms but for any reason is held to be unavailable or
insufficient from the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted) to which the Company and the Agent may be subject in
such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Agent on
the other hand. The relative benefits received by the Company on the one hand and the Agent on the other hand shall be deemed to be
in the same proportion as the total net proceeds from the sale of the Placement Shares (before deducting expenses) received by the
Company bear to the total compensation received by the Agent from the sale of Placement Shares on behalf of the Company. If, but
only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall
be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and the Agent, on the other hand, with respect to the statements or
omission that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Agent, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company and the Agent agree that it would not be
just and equitable if contributions pursuant to this Section 10(e) were to be determined by pro rata allocation or
by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof,
referred to above in this Section 10(e) shall be deemed to include, for the purpose of this Section 10(e),
any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such
action or claim to the extent consistent with Section 10(c) hereof. Notwithstanding the foregoing provisions of
this Section 10(e), the Agent shall not be required to contribute any amount in excess of the commissions received by it
under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 10(e), any person who controls a party to this Agreement within the meaning of the Securities
Act, any affiliates of the Agent and any officers, directors, partners, employees or agents of the Agent or any of its affiliates,
will have the same rights to contribution as that party, and each director of the Company and each officer of the Company who
signed the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section 10(e), will notify any such party or parties
from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution
may be sought from any other obligation it or they may have under this Section 10(e) except to the extent that the
failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution
is sought. Except for a settlement entered into pursuant to the last sentence of Section 10(c) hereof, no party
will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required
pursuant to Section 10(c) hereof.
11. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or the Company (or any of
their respective officers, directors, employees or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.
12. Termination.
(a) The
Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since
the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any
development or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties,
earnings, results of operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, which individually or in the aggregate, in the sole judgment of the Agent is material
and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the
Placement Shares, (2) if there has occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international political, financial or economic conditions, in each case
the effect of which is such as to make it, in the judgment of the Agent, impracticable or inadvisable to market the Placement Shares
or to enforce contracts for the sale of the Placement Shares, (3) if trading in the Ordinary Shares has been suspended or
limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices
for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities settlements or
clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium has been declared
by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification and
Contribution), Section 11 (Representations and Agreements to Survive Delivery), Section 17 (Governing Law
and Time; Waiver of Jury Trial) and Section 18 (Consent to Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination. If the Agent elects to terminate this Agreement as provided in this Section 12(a), the
Agent shall provide the required notice as specified in Section 13 (Notices).
(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(c) The
Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon the issuance and sale of
all of the Placement Shares through the Agent on the terms and subject to the conditions set forth herein; provided, that the provisions
of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof shall
remain in full force and effect notwithstanding such termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), (c) or (d) above
or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall
in all cases be deemed to provide that Section 8, Section 10, Section 11, Section 17 and
Section 18 shall remain in full force and effect.
(f) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
shall settle in accordance with the provisions of this Agreement. For the avoidance of doubt, upon termination of this Agreement, the
Company shall not be required to pay to the Agent any discount or commission with respect to any Placement Shares not otherwise sold by
the Agent under this Agreement.
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Capital
Markets
Facsimile: (000)
000-0000
and:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General
Counsel
Facsimile: (000)
000-0000
with a copy to:
Mintz, Levin, Cohn,
Ferris, Glovsky & Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx
X. Xxxx
Facsimile: (000)
000-0000
and if to the Company,
shall be delivered to:
Osmotica Pharmaceutical plc
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000)
000 0000
Attention: General
Counsel
Email: xxxxx@xxxxxxxxx.xxx
with a copy to:
Ropes & Xxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000)
000 0000
Attention: Xxxxx
Xxxxxx
Will Xxxxxxxx
Email: xxxxx.xxxxxx@xxxxxxxxx.xxx
xxxxxxx.xxxxxxxx@xxxxxxxxx.xxx
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered by electronic mail, personally or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a
Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which
the Exchange and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic
mail address specified by the receiving party. Electronic Notice shall be deemed received at the time the party sending Electronic Notice
receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be entitled to receive
the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be sent to the requesting
party within ten (10) days of receipt of the written request for Nonelectronic Notice.
14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective successors
and the parties referred to in Section 10 hereof. References to any of the parties contained in this Agreement shall be deemed to
include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that the Agent may assign
its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s consent.
15. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to
take into account any share split, share consolidation, dividend or similar event effected with respect to the Placement Shares.
16. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may
be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof
shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver by a party shall arise in the
absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. CONSENT
TO JURISDICTION. 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 WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. 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 (CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES
THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE
DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile or electronic
transmission.
20. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer
to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted,
supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated
thereunder.
21. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of the Agent,
which consent shall not be unreasonably withheld, conditioned or delayed, and the Agent represents, warrants and agrees that, unless it
obtains the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed, it has not
made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would
otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any
such free writing prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with
the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any,
listed in Exhibit 21 hereto are Permitted Free Writing Prospectuses.
22. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each
transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship
between the Company or any of its respective affiliates, shareholders (or other equity holders), creditors or employees or any other
party, on the one hand, and the Agent, on the other hand, has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not the Agent has advised or is advising the Company on other matters,
and the Agent has no obligation to the Company with respect to the transactions contemplated by this Agreement except the
obligations expressly set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither
the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those
of the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of fiduciary duty
or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent and
its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of
Company.
23. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each
Settlement Date.
“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision
of any of the foregoing.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering
that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.
“Rule 164,” “Rule 172,”
“Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities
Act Regulations.
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or 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 that is incorporated by reference in the Registration Statement
or the Prospectus, as the case may be. For the purpose of clarity, any financial information that is furnished by the Company shall
not be deemed incorporated by reference in the Registration Statement or the Prospectus.
All references in this Agreement
to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to XXXXX; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include
the copy thereof filed with the Commission pursuant to XXXXX; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with
any offering, sale or private placement of any Placement Shares by the Agent outside of the United States.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and the Agent.
|
By: |
/s/ Xxxxx Xxxxxxxx |
|
|
Name: Xxxxx Xxxxxxxx |
|
|
Title: Chief Executive Officer |
|
ACCEPTED as of the date first-above written: |
|
|
|
CANTOR XXXXXXXXXX & CO. |
|
By: |
/s/ Xxxx Xxxxx |
|
|
Name: Xxxx Xxxxx |
|
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Title: Global Head of Investment Banking |
SCHEDULE 1
Form of Placement Notice
Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Osmotica Pharmaceuticals plc, an Irish public limited company (the
“Company”), and Cantor Xxxxxxxxxx & Co. (“Agent”), dated September 8,
2021, the Company hereby requests that the Agent sell up to [•] of the Company’s ordinary shares, par value $0.01 per share,
at a minimum market price of $[•] per share, during the time period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
Compensation
The Company shall pay to the
Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the aggregate gross proceeds
from each sale of Placement Shares.
SCHEDULE 3
__________________________
Notice Parties
__________________________
The Company
Xxxxx Xxxxxxxx (xxxxxxxxxxxxx@xxxxxxxxx.xxx)
XX Xxxxxx (xxxxxxx@xxxxxxxxx.xxx)
Xxxxxx Xxxxxxx (xxxxxxxx@xxxxxxxxx.xxx)
Xxxxx Xxxxx (xxxxxx@xxxxxxxxx.xxx)
The Agent
Xxxxxx Xxxxxxx (xxxxxxxx@xxxxxx.xxx)
With copies to:
XXXxxxxxxxxxXxxxxxXxxxxxxx@xxxxxx.xxx
Exhibit 21
Permitted Free Writing Prospectus
None.