Exhibit 1.1
CELATOR PHARMACEUTICALS, INC.
Shares of Common Stock
(par value $0.001 per share)
Controlled Equity OfferingSM
Sales Agreement
October 16, 2015
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Celator Pharmaceuticals,
Inc., a Delaware corporation (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 issue and sell through the Agent, shares of common stock (the “Placement
Shares”) of the Company, par value $0.001 per share (the “Common Stock”); 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 shares of Common Stock registered on the effective Registration Statement (defined below)
pursuant to which the offering is being made, (b) exceed the number of authorized but unissued shares of Common Stock, (c) exceed
the number or dollar amount of shares of Common Stock 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 shares of Common Stock 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
Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through 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, 2014, although nothing in this Agreement shall
be construed as requiring the Company to use the Registration Statement to issue Common Stock.
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. 333-193720), 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 supplement to the base prospectus included as part
of the registration statement, which 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 such 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 in writing 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, and the Agent provides notice thereof within two (2) Business Days (as defined below) of receipt of such Placement
Notice, (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 13. 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 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 Capital 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 of the Securities Act Regulations, including without limitation sales made directly on the Exchange, on any other
existing trading market for the Common Stock or to or through a market maker. Subject to the terms of a Placement Notice, the Agent
may also sell Placement Shares by any other method permitted by law, including, but not limited to, in privately negotiated transactions.
“Trading Day” means any day on which Common Stock is 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 verifiable
facsimile transmission or 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), 7(n) and 7(o) with respect to the delivery of certificates,
opinions, or comfort letters to the Agent, shall be waived, provided, however, that such waiver shall not apply for the Representation
Date (defined below) occurring on the date that the Company files its annual report on Form 10-K. 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 and acknowledged by 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 third (3rd) 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 or self-regulatory
organization 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 11(a) hereto, it will (i) hold the Agent harmless against any loss,
claim, damage, or expense (including reasonable 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) Denominations;
Registration. Certificates for the Placement Shares, if any, shall be in such denominations and registered in such names
as the Agent may request in writing at least one full Business Day (as defined below) before the Settlement Date. The certificates
for the Placement Shares, if any, will be made available by the Company for examination and packaging by the Agent in The City
of New York not later than noon (New York time) on the Business Day prior to the Settlement Date.
(e) 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, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) 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, and notified to the Agent in writing. 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 Instruction 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 Registration Statement and 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 statutes, regulations, contracts or other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement have been so described or 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 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)
to which the Agent has consented. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently
listed on the Exchange under the trading symbol “CPXX.” The Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Common Stock under the Exchange Act, delisting the Common Stock 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. The
Company has no reason to believe that it will not in the foreseeable future continue to be in compliance with all such listing
and maintenance requirements.
(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 and any amendment and supplement
thereto, 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 documents incorporated by reference in the Prospectus or any Prospectus Supplement did not,
and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue
statement of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements
in such document, 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
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) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration
Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present
fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as
of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity of the
Company for the periods specified (subject to normal year-end audit adjustments for interim financial statements) and have been
prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with GAAP (as defined below)
applied on a consistent basis during the periods involved; the other financial and statistical data with respect to the Company
and the Subsidiaries (as defined below) contained or incorporated by reference in the Registration Statement, the Prospectus and
the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented in all material respects and prepared on a basis
consistent in all material respects with the financial statements and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement,
or the Prospectus that are not included or incorporated by reference as required; the Company and the Subsidiaries (as defined
below) do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits thereto), and the Prospectus; and all disclosures contained
or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all
material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
(e) Conformity
with XXXXX Filing. The Prospectus delivered to Agent for use in connection with the sale of the Placement Shares pursuant to
this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via XXXXX,
except to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each of its Subsidiaries (as defined below) are duly organized, validly existing as a corporation and in good standing
under the laws of their respective jurisdictions of organization. The Company and each of its Subsidiaries (as defined below) are
duly licensed or qualified as a foreign corporation for transaction of business and in good standing under the laws of each other
jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such
license or qualification, and have all corporate power and authority necessary to own or hold their respective properties and to
conduct their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to
be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a material
adverse effect or would reasonably be expected to have a material adverse effect on or affecting the assets, business, operations,
earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results of operations of the
Company and the Subsidiaries (as defined below) taken as a whole, or prevent or materially interfere with consummation of the transactions
contemplated hereby (a “Material Adverse Effect”).
(g) Subsidiaries.
The subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”), are the Company’s
only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission). Except as
set forth in the Registration Statement and in the Prospectus, the Company owns, directly or indirectly, all of the equity interests
of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction,
and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and
similar rights. No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary
of the Company.
(h) No
Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of
its Subsidiaries are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority, except, in the case of each of clauses (ii) and (iii) above, for any
such violation or default that would not, individually or in the aggregate, have a Material Adverse Effect. To the Company’s
knowledge, no other party under any material contract or other agreement to which it or any of its Subsidiaries is a party is in
default in any respect thereunder where such default would have a Material Adverse Effect.
(i) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Prospectus and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein), there
has not been (i) any Material Adverse Effect or the occurrence of any development that the Company reasonably expects will result
in a Material Adverse Effect, (ii) other than as contemplated by this Agreement, any transaction that is material to the Company
and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any Subsidiary, that is material to the Company and the Subsidiaries taken as a whole,
(iv) any material change in the capital stock (other than as a result of the sale of the Placement Shares) or outstanding long-term
indebtedness of the Company or any of its Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on
the capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise
disclosed in the Registration Statement or Prospectus (including any document deemed incorporated by reference therein).
(j) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and nonassessable and,
other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first
refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein (other than the grant of additional options under the Company’s
existing stock option plans, or changes in the number of outstanding shares of Common Stock of the Company due to the issuance
of shares upon the exercise or conversion of securities exercisable for, or convertible into, Common Stock outstanding on the date
hereof) and such authorized capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus.
The description of the securities of the Company in the Registration Statement and the Prospectus is complete and accurate in all
material respects. Except as disclosed in or contemplated by the Registration Statement or the Prospectus, as of the date referred
to therein, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, or any securities
or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock
or other securities.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general equitable principles and (ii) the indemnification and contribution provisions of Section 11 of this Agreement
may be limited by federal and state securities laws or public policy considerations in respect thereof.
(l) Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors
of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided
herein, will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance,
security interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal
or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued,
will conform to the description thereof set forth in or incorporated into the Prospectus.
(m) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement,
the issuance and sale by the Company of the Placement Shares, except for such consents, approvals, authorizations, orders and registrations
or qualifications as may be required under applicable state securities laws or by the by-laws and rules of the Financial Industry
Regulatory Authority (“FINRA”) or the Exchange in connection with the sale of the Placement Shares by
the Agent.
(n) No
Preferential Rights. Except as set forth in the Registration Statement and the Prospectus, (i) no person, as such term
is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has
the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other
capital stock or other securities of the Company (other than upon the exercise of options or warrants to purchase Common Stock
or upon the exercise of options or vesting of restricted stock units or stock awards that may be granted from time to time under
the Company’s equity plans), (ii) no Person has any preemptive rights, resale rights, rights of first refusal, rights
of co-sale, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Common
Stock or shares of any other capital stock or other securities of the Company, (iii) no Person has the right to act as an
underwriter or as a financial advisor to the Company in connection with the offer and sale of the Placement Shares, and (iv) no
Person has the right, contractual or otherwise, to require the Company to register under the Securities Act any Common Stock or
shares of any other capital stock or other securities of the Company, except pursuant to the Registration Rights Agreement dated
as of April 29, 2013 among the Company and the investors identified in the signature pages thereto, or to include any such shares
or other securities in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise.
(o) Independent
Public Accounting Firm. KPMG LLP (the “Accountant”), whose report on the consolidated financial statements
of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K filed with the
Commission and incorporated by reference into the Registration Statement and the Prospectus, are and, during the periods covered
by their report, were an independent registered public accounting firm within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of the
auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) with respect
to the Company.
(p) Enforceability
of Agreements. To the Company’s knowledge, all agreements between the Company and third parties expressly referenced
in the Prospectus, other than such agreements that have expired by their terms or the termination of which is disclosed in documents
filed by the Company on XXXXX, are legal, valid and binding obligations of the Company enforceable in accordance with their respective
terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification
provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect
thereof.
(q) No
Litigation. Except as set forth in the Registration Statement or the Prospectus, (i) there are no legal, governmental or regulatory
actions, suits or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory audits or investigations,
to which the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject
that, individually or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, would have a Material
Adverse Effect or materially and adversely affect the ability of the Company to perform its obligations under this Agreement; (ii)
to the Company’s knowledge, no such actions, suits or proceedings are threatened or contemplated by any governmental or regulatory
authority or threatened by others; (iii) there are no current or pending legal, governmental or regulatory audits or investigations,
actions, suits or proceedings that are required under the Securities Act to be described in the Prospectus that are not so described;
and (iv) there are no contracts or other documents that are required under the Securities Act to be filed as exhibits to the
Registration Statement that are not so filed.
(r) Consents
and Permits. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries have made
all filings, applications and submissions required by, possesses and is operating in compliance with, all approvals, licenses,
certificates, certifications, clearances, consents, grants, exemptions, marks, notifications, orders, permits and other authorizations
issued by, the appropriate federal, state or foreign governmental or regulatory authorities (including, without limitation, the
United States Food and Drug Administration (the “FDA”), the United States Drug Enforcement Administration
or any other foreign, federal, state, provincial, court or local government or regulatory authorities including self-regulatory
organizations engaged in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials)
necessary for the ownership or lease of their respective properties or to conduct their respective businesses as described in the
Registration Statement and the Prospectus (collectively, “Permits”), except for such Permits the failure
of which to possess, obtain or make the same would not have a Material Adverse Effect; the Company and its Subsidiaries are in
compliance with the terms and conditions of all such Permits, except where the failure to be in compliance would not have a Material
Adverse Effect; all of the Permits are valid and in full force and effect, except where any invalidity, individually or in the
aggregate, would not be reasonably expected to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries
has received any written notice of proceedings relating to the limitation, revocation, cancellation, suspension, modification or
non-renewal of any such Permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, and has any reason to believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course to the extent required. To the extent required by applicable laws and regulations of
the FDA, the Company or the applicable Subsidiary has submitted to the FDA an Investigational New Drug Application or amendment
or supplement thereto for each clinical trial it has conducted or sponsored or is conducting or sponsoring; to the Company’s
knowledge, all such submissions were in material compliance with applicable laws and rules and regulations when submitted and no
material deficiencies have been asserted by the FDA with respect to any such submissions. The Company and each Subsidiary possess
such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct their respective businesses except for such certificates, authorizations or permits the failure
of which to possess, obtain or make the same would not have a Material Adverse Effect, and neither the Company nor any Subsidiary
has received, or has any reason to believe that it will receive, any notice of proceedings relating to the revocation or modification
of, or non-compliance with, any such certificate, authorization or permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could result in a Material Adverse Effect.
(s) Regulatory
Filings. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries
has failed to file with the applicable regulatory authorities (including, without limitation, the FDA, or any foreign, federal,
state, provincial or local governmental or regulatory authority performing functions similar to those performed by the FDA) any
required filing, declaration, listing, registration, report or submission, except for such failures that, individually or in the
aggregate, would not have a Material Adverse Effect; except as disclosed in the Registration Statement and the Prospectus, all
such filings, declarations, listings, registrations, reports or submissions were in compliance with applicable laws when filed
and no deficiencies have been asserted by any applicable regulatory authority with respect to any such filings, declarations, listings,
registrations, reports or submissions, except for any deficiencies that, individually or in the aggregate, would not have a Material
Adverse Effect. The Company has operated and currently is, in all material respects, in compliance with the United States Federal
Food, Drug, and Cosmetic Act, all applicable rules and regulations of the FDA and other federal, state, local and foreign governmental
bodies exercising comparable authority.
(t) Intellectual
Property. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries own, possess,
license or have other rights to use all foreign and domestic patents, patent applications, trade and service marks, trade and service
xxxx registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, Internet domain names, know-how and
other intellectual property (collectively, the “Intellectual Property”), necessary for the conduct of
their respective businesses as now conducted except to the extent that the failure to own, possess, license or otherwise hold adequate
rights to use such Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect. Except as
disclosed in the Registration Statement and the Prospectus (i) there are no rights of third parties to any such Intellectual Property
owned by the Company and its Subsidiaries; (ii) to the Company’s knowledge, there is no infringement by third parties of
any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others challenging the Company’s and its Subsidiaries’ rights in or to any such Intellectual Property,
and the Company is unaware of any facts that could form a reasonable basis for any such action, suit, proceeding or claim; (iv)
there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property; (v) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark,
copyright, trade secret or other proprietary rights of others; (vi) to the Company’s knowledge, there is no third-party U.S.
patent or published U.S. patent application that contains claims for which an Interference Proceeding (as defined in 35 U.S.C.
§135) has been commenced against any patent or patent application described in the Prospectus as being owned by or licensed
to the Company; and (vii) the Company and its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual
Property has been licensed to the Company or such Subsidiary, and all such agreements are in full force and effect, except, (x)
in the case of any of clauses (i)-(vii) above, for any such infringement by third parties or any such pending or threatened suit,
action, proceeding or claim as would not, individually or in the aggregate, result in a Material Adverse Effect, and (y) in the
case of clause (vii) above, for any non-compliance as would not, individually or in the aggregate, result in a Material Adverse
Effect.
(u) Clinical
Studies. To the Company’s knowledge, the preclinical studies and tests and clinical trials described in the Prospectus
being conducted by or on behalf of the Company were, and, if still pending, are being, to the Company’s knowledge, conducted
in all material respects in accordance with the experimental protocols, procedures and controls pursuant to, where applicable,
accepted professional and scientific standards for products or product candidates comparable to those being developed by the Company;
the descriptions of such studies, tests and trials, and the results thereof, contained in the Prospectus are accurate and complete
in all material respects; the Company is not aware of any tests, studies or trials not described in the Prospectus, the results
of which reasonably call into question the results of the tests, studies and trials described in the Prospectus; and the Company
has not received any written notice or correspondence from the FDA or any foreign, state or local governmental body exercising
comparable authority or any institutional review board or comparable authority requiring the termination, suspension, clinical
hold or material modification of any tests, studies or trials.
(v) Market
Capitalization. At the time the Registration Statement was originally declared effective, and at the time the Company’s
most recent Annual Report on Form 10-K was filed with the Commission, the Company met the then applicable requirements for the
use of Form S-3 under the Securities Act, including, but not limited to, Instruction I.B.1 of Form S-3. The Company is not a shell
company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously
and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6
of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell
company.
(w) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material
Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its
last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred
stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term
leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect.
(x) Certain
Market Activities. Neither the Company, nor any of the Subsidiaries, nor any of their respective directors, officers or controlling
persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Placement Shares.
(y) Broker/Dealer
Relationships. Neither the Company nor any of the Subsidiaries or any related entities (i) is required to register as
a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly
through one or more intermediaries, controls or is a “person associated with a member” or “associated person
of a member” (within the meaning set forth in the FINRA Manual).
(z) No
Reliance. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting advice
in connection with the offering and sale of the Placement Shares.
(aa) Taxes.
The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns that have been required to
be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being
contested in good faith, except where the failure to so file or pay would not have a Material Adverse Effect. Except as otherwise
disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to
the Company or any of its Subsidiaries that has had, or would have, individually or in the aggregate, a Material Adverse Effect.
The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment that has been or
might be asserted or threatened against it that would have a Material Adverse Effect.
(bb) Title
to Real and Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries
have good and marketable title in fee simple to all items of real property owned by them, good and valid title to all personal
property described in the Registration Statement or Prospectus as being owned by them that are material to the businesses of the
Company or such Subsidiary, in each case free and clear of all liens, encumbrances and claims, except those matters that (i) do
not materially interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries
or (ii) would not, individually or in the aggregate, have a Material Adverse Effect. Any real or tangible personal property described
in the Registration Statement or Prospectus as being leased by the Company and any of its Subsidiaries is held by them under valid,
existing and enforceable leases, except those that (A) do not materially interfere with the use made or proposed to be made of
such property by the Company or any of its Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate,
to have a Material Adverse Effect. Each of the properties of the Company and its Subsidiaries complies with all applicable codes,
laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access
to such properties), except if and to the extent disclosed in the Registration Statement or Prospectus or except for such failures
to comply that would not, individually or in the aggregate, reasonably be expected to interfere in any material respect with the
use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect.
None of the Company or its subsidiaries has received from any governmental or regulatory authorities any notice of any condemnation
of, or zoning change affecting, the properties of the Company and its Subsidiaries, and the Company knows of no such condemnation
or zoning change that is threatened, except for such that would not reasonably be expected to interfere in any material respect
with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse
Effect, individually or in the aggregate.
(cc) Environmental
Laws. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries (i) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating
to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as described
in the Registration Statement and the Prospectus; and (iii) have not received notice of any actual or potential liability
for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits,
licenses, other approvals or liability as would not, individually or in the aggregate, have a Material Adverse Effect.
(dd) Disclosure
Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles
and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company’s internal control over financial
reporting is effective and the Company is not aware of any material weaknesses in its internal control over financial reporting
(other than as set forth in the Prospectus). Since the date of the latest audited financial statements of the Company included
in the Prospectus, 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 (other than
as set forth in the Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material information relating
to the Company and each of its Subsidiaries is made known to the certifying officers by others within those entities, particularly
during the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and
procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal year most recently ended (such
date, the “Evaluation Date”). The Company presented in its Form 10-K for the fiscal year most recently
ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date and the disclosure controls and procedures are effective. Since the Evaluation Date, there
have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation
S-K under the Securities Act) or, to the Company’s knowledge, in other factors that could significantly affect the Company’s
internal controls.
(ee) Xxxxxxxx-Xxxxx.
There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any applicable provisions of the Xxxxxxxx-Xxxxx
Act and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer
of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company
as applicable) has made all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to all reports,
schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission. For purposes
of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the
meanings given to such terms in the Xxxxxxxx-Xxxxx Act.
(ff) Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to Agent
pursuant to this Agreement.
(gg) Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge
of the Company, is threatened that would result in a Material Adverse Effect.
(hh) Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares, will be an “investment company” or an entity “controlled” by an “investment company,”
as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(ii) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial
record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”), except as would not result in a Material Adverse Effect; 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.
(jj) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or,
to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structural
finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that would
reasonably be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital
resources, including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s
Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to
be described in the Prospectus that have not been described as required.
(kk) Underwriter
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.
(ll) ERISA.
To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to
by the Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including,
but not limited to, ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material
liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative
exemption; and for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value
of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all
benefits accrued under such plan determined using reasonable actuarial assumptions.
(mm) Forward
Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of
the Exchange Act) (a “Forward Looking Statement”) contained in the Registration Statement and the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. The Forward Looking Statements
incorporated by reference in the Registration Statement and the Prospectus from the Company’s Annual Report on Form 10-K
for the fiscal year most recently ended (i) are within the coverage of the safe harbor for forward looking statements set
forth in Section 27A of the Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the Exchange Act, as applicable,
(ii) were made by the Company with a reasonable basis and in good faith and reflect the Company’s good faith commercially
reasonable best estimate of the matters described therein, and (iii) have been prepared in accordance with Item 10 of Regulation
S-K under the Securities Act.
(nn) Agent
Purchases. The Company acknowledges and agrees that Agent has informed the Company that the Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect,
provided, that (i) no such purchase or sales shall take place while a Placement Notice 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) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or
sales by the Agent.
(oo) 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.
(pp) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company
and each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies
engaged in similar businesses in similar industries.
(qq) No
Improper Practices. (i) Neither the Company nor the Subsidiaries nor, to the Company’s knowledge, any of their respective
executive officers has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed
fully to disclose any contribution in violation of law) or made any contribution or other payment to any official of, or candidate
for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation
of any law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or any Subsidiary or any affiliate of any of them, on the one hand, and the directors, officers and
stockholders of the Company or any Subsidiary, on the other hand, that is required by the Securities Act to be described in the
Registration Statement and the Prospectus that is not so described; (iii) no relationship, direct or indirect, exists between
or among the Company or any Subsidiary or any affiliate of them, on the one hand, and the directors, officers, or stockholders
of the Company or any Subsidiary, on the other hand, that is required by the rules of FINRA to be described in the Registration
Statement and the Prospectus that is not so described; (iv) except as described in the Registration Statement and the Prospectus,
there are no material outstanding loans or advances or material guarantees of indebtedness by the Company or any Subsidiary to
or for the benefit of any of their respective officers or directors or any of the members of the families of any of them; and (v)
the Company has not offered, or caused any placement agent to offer, Common Stock to any person with the intent to influence unlawfully
(A) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s level or type
of business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish favorable information
about the Company or any Subsidiary or any of their respective products or services, and, (vi) neither the Company nor any Subsidiary
nor, to the Company’s knowledge, any employee or agent of the Company or any Subsidiary has made any payment of funds of
the Company or any Subsidiary or received or retained any funds in violation of any law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of a character required
to be disclosed in the Registration Statement or the Prospectus.
(rr) Status
Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities Act
at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(ss) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and
as of each Applicable Time (as defined in Section 24 below), did not, does not and will not, through the completion of the
Placement for which such Issuer Free Writing Prospectus is used or deemed used, include any information that conflicted, conflicts
or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document
deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company
by the Agent specifically for use therein.
(tt) No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation
of any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof
and thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute
a default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which
any of the property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived
and (ii) such conflicts, breaches and defaults that would not have a Material Adverse Effect; nor will such action result (x) in
any violation of the provisions of the organizational or governing documents of the Company, or (y) in any material violation of
the provisions of any statute or any order, rule or regulation applicable to the Company or of any court or of any federal, state
or other regulatory authority or other government body having jurisdiction over the Company, other than with respect to this clause
(y) only, any violation that would have a Material Adverse Effect.
(uu) Sanctions.
(i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”)
or any director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in
this paragraph (uu), “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,
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar,
Cuba, Iran, North Korea, Sudan and Syria).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, 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
(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
Entity represents and covenants that, except as detailed in the Registration Statement and the Prospectus, for the past 5 years,
it has not knowingly engaged in, is not now knowingly engaged in, and will not 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.
(vv) Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) that are required to be
paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid
or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with.
(ww) Compliance
with Laws. Except as set forth in the Registration Statement or the Prospectus, each of the Company and its Subsidiaries: (A)
is and at all times has been in compliance with all statutes, rules, or regulations applicable to the ownership, testing, development,
manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export
or disposal of any product manufactured or distributed by the Company or its Subsidiaries (“Applicable Laws”),
except as could not, individually or in the aggregate, result in a Material Adverse Effect; (B) has not received any FDA Form 483,
notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the FDA or any other Governmental
Authority alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations,
permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (C) possesses
all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation of
any term of any such Authorizations; (D) has not received notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any Governmental Authority or third party alleging that any product operation or
activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental Authority or
third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has not received
notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations
and has no knowledge that any such Governmental Authority is considering such action; (F) has filed, obtained, maintained or submitted
all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required
by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission);
and (G) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued,
any recall, market withdrawal or replacement, safety alert, post-sale warning, “dear healthcare provider” letter, or
other notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product defect or violation
and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate any such notice or action.
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 Agent under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act), (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 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 such 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 or a security convertible into the Placement Shares unless a copy thereof has been submitted to Agent within a reasonable
period of time before the filing and the Agent has not objected in writing thereto within two (2) Business Days (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 the Company
has no obligation to provide the Agent any advance copy of such filing or to provide the Agent any opportunity to object to such
filing if such filing does not name the Agent and does not relate to the transactions contemplated by this Agreement, and provided,
further, that the only remedy Agent shall have with respect to the failure by the Company to obtain such consent shall be to cease
making sales under this Agreement) and 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 (iv) 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), 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 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.
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 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.
(d) Listing
of Placement Shares. During any period in which the 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, the Company will use its reasonable
best efforts to cause the Placement Shares to be listed 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) Earnings
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 earnings 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 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 Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire,
Common Stock during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement
Notice is delivered to Agent hereunder and ending on the fifth (5th) 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 Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire,
Common Stock prior to the later of the termination of this Agreement and the sixtieth (60th) day immediately following
the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice; provided, however, that such
restrictions will not be required in connection with the Company’s issuance or sale of (i) Common Stock, options to
purchase Common Stock or Common Stock issuable upon the exercise of options, pursuant to any employee or director stock option
or benefits plan, stock ownership plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits
in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented, (ii) Common Stock 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) Common Stock or securities convertible into or
exchangeable for shares of Common Stock as consideration for mergers, acquisitions, other business combinations or strategic alliances
occurring after the date of this Agreement that 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 and at the Company’s principal offices, as the Agent
may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require
the filing of a prospectus supplement with respect to the sale of Placement Shares hereunder, 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) 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 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 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 that the instructions for the sale of Placement
Shares are issued.
(m) Legal
Opinions. (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 Xxxxx Xxxxxx LLP (“Company Counsel”), a written opinion of Xxxxxx and Xxxxxxx
LLP (“Company Regulatory Counsel”) and a written opinion of Xxxxxxxx & Xxxxxxxx LLP
(“Company IP Counsel”), 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) Other
Legal Opinions. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of the date on which
the Company files an annual report on Form 10-K, the Company shall cause to be furnished to the Agent (A) a written opinion of
intellectual property counsel with respect to the accuracy of the statements in the Registration Statement and Prospectus under
the heading “Risk Factors – Risks Relating to the Company’s Intellectual Property” and such other matters
as the Agent may reasonably request and (B) a written opinion of regulatory counsel with respect to the accuracy of the statements
in the Registration Statement and Prospectus under the heading “Risk Factors – Risks Relating to the Company’s
Business and Industry” and such other matters as the Agent may reasonably request.
(o) 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(o); provided, that if 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,
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.
(p) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that
constitutes or might 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 Common Stock or (ii) sell, bid for, or purchase Common Stock, or pay anyone any
compensation for soliciting purchases of the Placement Shares other than the Agent.
(q) 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.
(r) 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.
(s) 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 (but
in no event for less than one year from the date of this Agreement); 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 (but in no event
for less than one year from the date of this Agreement).
(t) 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.
(u) 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 Certificate of Incorporation of the Company, (ii) the By-laws 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.
8. Payment
of Expenses. The Company will pay 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 deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance
and delivery of the certificates, if any, for the Placement Shares to the Agent, including any stock 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, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the fees
and expenses of 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 $50,000; (vi) the qualification or exemption of the Placement Shares under state
securities laws in accordance with the provisions of Section 7(s) hereof, including filing fees, but excluding fees of the
Agent’s counsel, (vii) the printing and delivery to the Agent of copies of any Permitted Issuer Free Writing Prospectus
and the Prospectus and any amendments or supplements thereto in such number as the Agent shall deem necessary, (viii) the
preparation, printing and delivery to the Agent of copies of the blue sky survey, (ix) the fees and expenses of the transfer
agent and registrar for the Common Stock, (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. Representations
and Covenants of Agent. Agent represents and warrants that it is duly registered as a broker-dealer under FINRA, the Exchange
Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold, except such
states in which Agent is exempt from registration or such registration is not otherwise required. Agent shall continue, for the
term of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and
regulations of each state in which the Placement Shares will be offered and sold, except such states in which Agent is exempt from
registration or such registration is not otherwise required, during the term of this Agreement. Agent will comply with all applicable
law and regulations in connection with the Placement Shares, including, but not limited to, Regulation M.
10. 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 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) 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 documents so that, in the case
of the Registration Statement, it will not contain any materially 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 any materially 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. 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 change in the authorized capital stock of the Company or any Material Adverse Effect or
any development that would 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, Company Regulatory Counsel, and Company
IP Counsel required to be delivered pursuant to Section 7(m) or 7(n) on or before the date on which such delivery of such
opinion is required pursuant to Section 7(m) or 7(n).
(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(o) on or before the
date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(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 Common Stock shall not have been suspended on the Exchange and the Common Stock 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. All such opinions, certificates, letters and other documents will be in compliance with the provisions
hereof.
(j) Securities
Act Filings Made. All filings with the Commission with respect to the Placement Shares 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 approved for listing on the Exchange, subject only to notice of issuance,
or 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.
(l) FINRA.
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 13(a).
11. 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 agency or body, 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 11(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 agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or
omission (whether or not a party), 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 written
information furnished to the Company by the Agent expressly for use in the Registration Statement (or any amendment thereto), or
in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(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 11(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) or the 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 seventh and eighth paragraphs under the caption “Plan of Distribution”
in the Prospectus.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 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 11, 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 11 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 11 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 legal or
other 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 (plus local counsel), be liable for the reasonable fees, disbursements and other charges of more than
one separate firm 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 and after the
indemnifying party receives a written notice relating to the fees, disbursements and other charges in reasonable detail. An indemnifying
party will not, in any event, be liable for any settlement of any action or claim effected without its written consent if such
consent is required by this Section 11(c). 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 11 (whether or not any indemnified party is a party thereto), unless such settlement,
compromise or consent (1) includes an 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 for which it is entitled to reimbursement under this Section
11, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 11(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 11 is applicable in accordance with its terms but for any reason is held to be unavailable 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, but after deducting any contribution received by the Company from persons
other than the Agent, such as persons who control the Company within the meaning of the Securities Act, officers of the Company
who signed the Registration Statement and directors of the Company, who also may be liable for contribution) 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 (before deducting expenses) 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 11(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 11(e) shall be deemed to include, for the purpose of this Section
11(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 11(c) hereof. Notwithstanding the foregoing provisions of this Section
11(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
11(e), any person who controls a party to this Agreement within the meaning of the Securities Act, and any officers, directors,
partners, employees or agents of the Agent, will have the same rights to contribution as that party, and each director of the Company
and each officer 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 11(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 11(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 11(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 11(c) hereof.
12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 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 or controlling persons), (ii) delivery and acceptance of the Placement Shares
and payment therefor or (iii) any termination of this Agreement.
13. 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 Common Stock 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 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive
Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (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 13(a), the Agent shall provide the required notice as specified in Section 14 (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 11, Section 12, Section 18 and Section 19 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 11, Section 12, Section 18 and Section 19 hereof shall remain in full force and effect
notwithstanding such termination.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b) and (c) 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 11, Section 12, Section 18 and Section 19 shall remain in full force and effect.
(e) 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.
14. 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/Xxxxxxx Xxxxx |
with copies to:
Cantor Xxxxxxxxxx
& Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX
00000
| Attention: | General Counsel |
and with a copy to:
Xxxxxx LLP
0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, XX 00000
| Attention: | Xxxxxx X. Xxxxxxxx, Esq. |
and if to
the Company, shall be delivered to:
Celator Pharmaceuticals,
Inc.
000 XxxxxxxxxXxxxx
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
with a copy to:
Xxxxx Xxxxxx
LLP
00 Xxxxx 00xx
Xxxxxx
Xxxxxxxxxxxx,
XX 00000
| Attention: | Xxxxxxxx Xxxx, Esq. |
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 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 14 if sent to the electronic
mail address specified by the receiving party under separate cover. 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.
15. 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 affiliates, controlling persons, officers and directors referred to in Section 11 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,
as long as such affiliate is a registered broker-dealer, without obtaining the Company’s consent.
16. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any stock split, stock dividend or similar event effected with respect to the Placement Shares.
17. 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.
18. 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. THE COMPANY
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.
19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-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.
20. 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.
21. 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.
22. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior consent of the Agent,
which consent shall not be reasonably withheld, conditioned or delayed, and the Agent represents, warrants and agrees that, unless
it obtains the prior consent of the Company, which consent shall not be reasonably 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 22 hereto are Permitted Free Writing Prospectuses.
23. 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, stockholders (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, other than in respect of the Agent’s obligations under this Agreement and to keep information
provided by the Company to the Agent and the Agent's counsel confidential to the extent not otherwise publicly-available.
24. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant to this
Agreement.
“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.
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.
| |
Very truly yours,
|
| |
|
| |
CELATOR PHARMACEUTICALS, INC. |
| |
|
| |
By: |
/s/ Xxxxx X. Xxxxxxx |
| |
|
Name: Xxxxx X. Xxxxxxx |
| |
|
Title: Chief Executive Officer |
| |
ACCEPTED as of the date first-above written: |
| |
CANTOR XXXXXXXXXX & CO. |
| |
|
| |
By: |
/s/ Xxxxxxx Xxxxx |
| |
|
Name: Xxxxxxx Xxxxx |
| |
|
Title: Senior Managing Director |
Signature
Page
Celator
Pharmaceuticals, Inc. – Sales Agreement
SCHEDULE 1
Form of Placement Notice
| |
From: |
Celator Pharmaceuticals, Inc. |
| |
|
|
| |
To: |
Cantor Xxxxxxxxxx & Co. |
| |
|
|
| |
Attention: |
[•] |
| |
|
|
| |
Subject: |
Placement Notice |
| |
|
|
| |
Date: |
[•] |
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|
|
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Ladies and Gentlemen: |
Pursuant to the terms
and subject to the conditions contained in the Sales Agreement between Celator Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and Cantor Xxxxxxxxxx & Co. (“Agent”), dated October 16, 2015,
the Company hereby requests that the Agent sell up to [•] of the Company’s common stock, par value $0.001 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 Xxxxxxx (xxxxxxxx@xxxxxxxxxxxxx.xxx)
The Agent
Xxxx Xxxxx (xxxxxx@xxxxxx.xxx)
Xxxx Xxxxxxx (xxxxxxxx@xxxxxx.xxx)
Xxxxxx Xxxxxxx (xxxxxxxx@xxxxxx.xxx)
With copies to:
XXXxxxxxxxxxXxxxxxXxxxxxxx@xxxxxx.xxx
SCHEDULE 4
Subsidiaries
Incorporated by reference to Exhibit 21 of
the Company’s most recently filed Form 10-K.
Exhibit 22
Permitted Free Writing
Prospectus
None.
