Exhibit 1.2
Nyxoah
SA
Ordinary Shares
(no par value)
Controlled Equity OfferingSM
Sales Agreement
December 22, 2022
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Nyxoah SA, a limited liability
company (naamloze vennootschap/société anonyme) organized under the laws of Belgium (the “Company”),
confirms its agreement (this “Agreement”) with Cantor Xxxxxxxxxx & Co. (the “Agent”),
as follows:
1. Issuance
and Sale of Ordinary Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may at its sole discretion issue and sell through the Agent, the ordinary shares (the “Placement
Shares”) with no par value of the Company (the “Ordinary Shares”); provided, however,
that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed
the number or dollar amount of Ordinary Shares registered on the effective Registration Statement (as defined below) pursuant to which
the offering is being made, (b) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form F-3 (including
General Instruction I.B.5 thereof, if applicable) or (c) exceed the number or dollar amount of Ordinary Shares for which the Company
has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), and (c), the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in
this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of
the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through
the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared
effective by the United States Securities and Exchange Commission (the “Commission”), although nothing in this
Agreement shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares.
The Company has filed or
will file, 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 F-3, including a base prospectus, relating to certain securities, including the Placement Shares to be issued
from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the
registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the
Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies
of the prospectus included as part of 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) (as defined below), is herein called
the “Prospectus.”
Any reference herein to the
Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include
the documents, if any, incorporated by reference therein (the “Incorporated Documents”), including, unless
the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the
terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus
Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under
the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement,
Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement,
all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the
most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable,
the Interactive Data Electronic Application system when used by the Commission (collectively, “XXXXX”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify the Agent by email notice (or other method mutually agreed to by the parties) of the number of Placement Shares to be issued,
the time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold in any
one day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which is
attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on
Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to
each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The
Placement Notice shall be effective unless and until (i) the Agent declines to accept the terms contained therein for any reason,
in its sole discretion, (ii) the entire amount of the Placement Shares thereunder have been sold, (iii) the Company suspends
or terminates the Placement Notice or (iv) this Agreement has been terminated under the provisions of Section 12. The
amount of any commission or other compensation to be paid by the Company to the Agent in connection with the sale of the Placement Shares
shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither
the Company nor the Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the
Company delivers a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and
the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by the Agent. Subject to the provisions of Section 5(a), the Agent, for the period specified in the
Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of the Nasdaq Global Market (the “Exchange”),
to sell the Placement Shares up to the amount specified in, and otherwise in accordance with, the terms of such Placement Notice. The
Agent will provide written confirmation to the Company no later than 9:00 a.m., Central European time, on 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 Proceeds (as defined below) payable to the Company, with an itemization of the amount to be paid by the Company to the
Agent (as set forth in Section 5(b)) from the Proceeds that the Company receives. Subject to the terms of the Placement Notice,
the Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined in
Rule 415(a)(4) of the Securities Act Regulations, including sales made directly on or through the Exchange or any other existing
trading market for the Ordinary Shares, in negotiated transactions at market prices prevailing at the time of sale or at prices related
to such prevailing market prices and/or any other method permitted by law. “Trading Day” means any day on which
Ordinary Shares are traded on the Exchange.
4. Suspension
of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the
individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by 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), and 7(n) with respect to the delivery of certificates,
opinions, or comfort letters to the Agent, shall be waived. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such
Schedule may be amended from time to time. Notwithstanding any other provision of this Agreement, during any period in which the Company
is in possession of material non-public information, the Company and the Agent agree that (i) no sale of Placement Shares will take
place, (ii) the Company shall not request the sale of any Placement Shares, and (iii) the Agent shall not be obligated to sell
or offer to sell any Placement Shares.
5. Sale
and Delivery to the Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Placement Shares up to the amount specified, and otherwise in accordance with the terms
of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful
in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if
it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent
with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement
and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except
as otherwise agreed by the Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on
which such sales are made (each, a “Settlement Date”). The Agent shall notify the Company of each sale of Placement
Shares no later than 9:00 a.m., Central European time, on 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 “Proceeds”) will be equal to the aggregate sales price received by the Agent for
the Placement Shares sold. On the Settlement Date, the Company will pay to the Agent an amount equal to (i) the Agent’s commission
or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees
imposed by any Governmental Authority (as defined below) in respect of such sales.
(c) Payment
of Placement Shares. Payment for the Placement Shares sold hereunder is to be made by the Agent in immediately available funds
to a blocked account designated by the Company (the “Blocked Account”). Such payment shall be initiated by urgent
/ “same-day” “SWIFT” wire not later than 4:00 p.m., Central European time, on the Trading Day immediately
following the Trading Day on which it has made sales of Placement Shares hereunder. The effective realization of the Company’s
capital increase and the issuance of the relevant Placement Shares sold hereunder, will be acknowledged and recorded in a notarial
deed in accordance with 7:186 of the Belgian Code of Companies and Associations, and the Agent shall subscribe for such Placement
Shares with a view to distributing such Placement Shares on and after the relevant Settlement Date to the investors to whom such
Placement Shares have been sold.
(d) Delivery
of Placement Shares. On 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. 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, through no fault of
the Agent, then in addition to and in no way limiting the rights and obligations set forth in Section 10(a) hereto,
it will (i) hold the Agent harmless against any loss, claim, damage, or expense (including reasonable and documented 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, or other compensation to which it would otherwise have been entitled absent such default.
(e) [Reserved]
(f) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if,
after giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant to this
Agreement would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount and
(B) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors,
a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in writing. Under no circumstances
shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum
price authorized from time to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized
executive committee. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares
sold pursuant to this Agreement to exceed the Maximum Amount.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with the 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 F-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration
Statement has been or will be filed with the Commission and will be declared effective by the Commission under the Securities Act prior
to the issuance of any Placement Notices by the Company. 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 the Agent and its counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date and completion
of the distribution of the Placement Shares, will not distribute any offering material in connection with the offering or sale of the
Placement Shares other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined below) to
which the Agent has consented. The Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are currently
listed on the Exchange under the trading symbol “NYXH.” The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Ordinary Shares under the Exchange Act, delisting the Ordinary Shares from the Exchange,
nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing.
To the Company’s knowledge, it is in compliance with all applicable listing requirements of the Exchange.
(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment
or supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects
with the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date,
will conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes
effective, did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, on the date
thereof and at each Applicable Time (as 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 the Agent specifically for use in the preparation thereof.
(c) Conformity
with the 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, comply in all material
respects with the requirements of the Securities Act and Exchange Act and fairly present the financial condition of the Company and its
consolidated subsidiaries as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified
in conformity with international financial reporting standards (“IFRS”) consistently applied throughout the
periods involved; all non-IFRS financial information included in or incorporated by reference in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses complies with the requirements of Regulation G and Item 10 of Regulation S-K under the Securities
Act; and, except as disclosed in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses or any document
incorporated by reference therein, there are no material off-balance sheet arrangements (as defined in Regulation S-K under the Securities
Act, Item 303(a)(4)(ii)) or any other relationships with unconsolidated entities or other persons, that may have a material current
or, to the Company’s knowledge, material future effect on the Company’s financial condition, results of operations, liquidity,
capital expenditures, capital resources or significant components of revenue or expenses. No other financial statements or schedules
are required to be included in the Registration Statement, the Prospectus or the Issuer Free Writing Prospectuses or any document incorporated
by reference therein. EY Bedrijfsrevisoren BV, which has expressed its opinion with respect to the financial statements and schedules
filed as a part of the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses and the documents incorporated
therein, is (x) an independent public accounting firm within the meaning of the Act and the Rules and Regulations, (y) a
registered public accounting firm (as defined in Section 2(a)(12) of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx
Act”)) and (z) not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act.
(e) Conformity
with XXXXX Xxxxxx. The Prospectus delivered to the 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.
Each of the Company and its subsidiaries has been duly organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and its subsidiaries has full corporate power and authority to own its
properties and conduct its business as currently being carried on and as described in the Registration Statement, the Prospectus and
the Issuer Free Writing Prospectuses and the documents incorporated by reference therein, and is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction in which it owns or leases real property or in which the conduct of its business makes
such qualification necessary and in which the failure to so qualify would reasonably be expected to have a Material Adverse Effect. “Material
Adverse Effect” shall mean any material adverse change or effect, or any development involving a prospective material adverse
change or effect, in or affecting (i) the business, earnings, assets, liabilities, prospects, properties, condition (financial or
otherwise), operations, general affairs, management, financial position, shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole, or (ii) the ability of the Company to perform its obligations under this Agreement, including
the issuance and sale of the Placement Shares, or to consummate the transactions contemplated in the Prospectus or Issuer Free Writing
Prospectuses.
(g) Subsidiaries.
Other than the subsidiaries of the Company listed in Schedule 4, the Company, directly or indirectly, owns no capital stock or
other equity or ownership or proprietary interest in any corporation, partnership, association, trust or other entity.
(h) Restrictions
on Subsidiary Payments to the Company. No subsidiary of the Company 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, except as described in or contemplated by the Registration Statement and the Prospectus.
(i) No
Violation or Default. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries
(i) is in violation of its articles of association, charter or by-laws (or similar organizational documents), (ii) is 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, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement, license or
other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject,
or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and
(iii), to the extent any such conflict, breach, violation or default would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
(j) No
Material Adverse Change. Except as contemplated in the Registration Statement or the Prospectus, subsequent to the respective dates
as of which information is given in the Prospectus, neither the Company nor any of its subsidiaries has incurred any material liabilities
or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution
of any kind with respect to its share capital; and there has not been any change in the share capital (other than a change in the number
of outstanding Ordinary Shares due to the issuance of shares upon the exercise of outstanding options or warrants or conversion of convertible
securities), or any material change in the short-term or long-term debt (other than as a result of the conversion of convertible securities),
or any issuance of options, warrants, convertible securities or other rights to purchase the share capital, of the Company or any of
its subsidiaries, or any Material Adverse Effect.
(k) Capitalization;
the Securities; Registration Rights. All of the issued and outstanding shares of the Company, including the outstanding Ordinary
Shares, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state
and foreign securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or
purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Agent), and the holders
thereof are not subject to personal liability by reason of being such holders; the Placement Shares which may be sold hereunder by the
Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have
been validly issued and will be fully paid and nonassessable, and the holders thereof will not be subject to personal liability by reason
of being such holders; and the share capital of the Company, including the Ordinary Shares, conforms to the description thereof in the
Registration Statement, the Prospectus and the Free Writing Prospectuses and the documents incorporated by reference therein. Except
as otherwise stated in the Registration Statement, the Prospectus and the Free Writing Prospectuses and the documents incorporated by
reference therein, (A) there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, any Ordinary Shares pursuant to the Company’s articles of association or any agreement or other 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 and (B) neither
the filing of the Registration Statement nor the offering or sale of the Placement Shares as contemplated by this Agreement gives rise
to any rights for or relating to the registration of any Ordinary Shares or other securities of the Company (collectively “Registration
Rights”). All of the issued and outstanding shares of each of the Company’s subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except as otherwise described in the Registration Statement, the Prospectus
and the Free Writing Prospectuses and the documents incorporated by reference therein, the Company owns of record and beneficially, free
and clear of any security interests, claims, liens, proxies, equities or other encumbrances, all of the issued and outstanding shares.
The Company has an authorized and outstanding capitalization as set forth in the Registration Statement, the Prospectus and the Free
Writing Prospectuses and the documents incorporated by reference therein under the caption “Capitalization.” The Ordinary
Shares (including the Placement Shares) conform in all material respects to the description thereof contained in the Prospectus.
(l) Authorization;
No Conflicts; Authority. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid,
legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be
limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the rights of creditors generally and subject to general principles of equity. The execution, delivery and
performance of this Agreement and the consummation of the transactions herein contemplated will not (A) conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to 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 is
subject, (B) result in any violation of the provisions of the Company’s articles of association or (C) result in the
violation of any law or statute or any judgment, order, rule, regulation or decree of any court or arbitrator or federal, state, local
or foreign governmental agency or regulatory authority having jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets (each, a “Governmental Authority”), except in the case of clause (A) as would not
reasonably be expected to result in a Material Adverse Effect. No consent, approval, authorization or order of, or registration or filing
with any Governmental Authority is required for the execution, delivery and performance of this Agreement or for the consummation of
the transactions contemplated hereby, including the issuance or sale of the Placement Shares by the Company, except such as may be required
under the Act , the rules of the Financial Industry Regulatory Authority (“FINRA”) or state securities
or blue sky laws; and the Company has full power and authority to enter into this Agreement and to consummate the transactions contemplated
hereby, including the authorization, issuance and sale of the Placement Shares as contemplated by this Agreement.
(m) Absence
of Proceedings. Except as set forth in the Registration Statement or the Prospectus, there is not pending or, to the knowledge of
the Company, threatened or contemplated, any action, suit or proceeding (a) to which the Company or any of its subsidiaries is a
party or (b) which has as the subject thereof any officer or director of the Company or any subsidiary, any employee benefit plan
sponsored by the Company or any subsidiary or any property or assets owned or leased by the Company or any subsidiary before or by any
court or Governmental Authority, or any arbitrator, which would, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect or which are otherwise material in the context of the sale of the Placement Shares. There are no current or,
to the knowledge of the Company, pending, legal, governmental or regulatory actions, suits or proceedings (x) to which the Company
or any of its subsidiaries is subject or (y) which has as the subject thereof any officer or director of the Company or any subsidiary,
any employee plan sponsored by the Company or any subsidiary or any property or assets owned or leased by the Company or any subsidiary,
that are required to be described in the Prospectus by the Securities Act or by the Securities Act Regulations and that have not been
so described.
(n) Health
Care Authorizations. The Company has submitted and possesses, or qualifies for applicable exemptions to, such valid and current registrations,
listings, approvals, clearances, licenses, classifications, exemptions, certificates, authorizations or permits and supplements or amendments
thereto issued or required by the appropriate Governmental Authority or designated organization necessary to conduct its business (“Permits”),
including, without limitation, all such Permits required by the U.S. Food and Drug Administration (the “FDA”),
the U.S. Department of Health and Human Services (“HHS”), the U.S. Centers for Medicare & Medicaid
Services (“CMS”), state Medicaid agencies, European Union member state national competent authorities (“NCAs”)
or any other comparable local, state, federal or foreign agencies or bodies to which it is subject, and the Company has not received
any notice of proceedings relating to the revocation or modification of, or material non-compliance with, any such Permit.
(o) Compliance
with Health Care Laws. The Company, its directors, employees and, to the Company’s knowledge, its agents are and at all times
have been in material compliance with, all health care laws applicable to the Company, its products and activities, including, without
limitation and to the extent applicable, (i) all foreign, federal, state, and local healthcare related-fraud and abuse, anti-kickback,
self-referral, and false claims laws, including the federal Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the Civil Monetary
Penalties Law (42 U.S.C. § 1320a-7a), the civil False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal False Claims
Law (42 U.S.C. Section 1320a-7b(a)), the exclusion laws (42 U.S.C. Section 1320a-7), Physician Payments Sunshine Act (42 U.S.C.
§ 1320a-7h), all criminal laws relating to health care fraud and abuse, including, but not limited to, 18 U.S.C. §§ 286,
287, 1001 and 1347, and the health care fraud criminal provisions under the U.S. Health Insurance Portability and Accountability Act
of 1996 (42 U.S.C. Section 1320d et seq.) (“HIPAA”), (ii) HIPAA, as amended by the Health Information
Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.), (iii) the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. Section 301 et seq.), (iv) Medicare (Title XVIII of the Social Security Act), (v) Medicaid (Title XIX of
the Social Security Act), (vi), in the case of each of the foregoing clauses, as amended and together with the regulations promulgated
pursuant to such laws, and (vii) any other local, state, federal or foreign law, accreditation standards, regulation, memorandum,
opinion letter, or other issuance which imposes requirements on manufacturing, development, testing, labeling, advertising, marketing,
promotion, distribution, reporting, kickbacks, patient or program charges, recordkeeping, claims process, documentation requirements,
medical necessity, referrals, the hiring of employees, contracting of independent contractors or acquisition of services or supplies
from those who have been excluded from government health care programs, quality, safety, privacy, security, licensure, accreditation
or any other aspect of the research, design, testing, development, sale, marketing, promotion, advertising, ownership, manufacture, packaging,
processing, use, distribution, storage, or disposal of medical devices and healthcare items and services (collectively, “Health
Care Laws”). The Company has not received any notification, correspondence or any other written or oral communication,
including notification of any pending or threatened claim, suit, proceeding, hearing, enforcement, investigation, arbitration or other
action from any Governmental Authority, including, without limitation, the FDA, the European Union NCAs, the U.S. Federal Trade Commission,
CMS, stated Medicaid agencies, HHS’s Office of Inspector General, the U.S. Department of Justice and state Attorneys General or
similar agencies or Governmental Authorities, of potential or actual material violation or non-compliance by, or liability of, the Company
under any Health Care Laws. To the Company’s knowledge, there are no facts or circumstances that would reasonably be expected to
give rise to material liability of the Company under any Health Care Laws. The Company is not a party to, and has no ongoing reporting
obligations pursuant to, any corporate integrity agreements, deferred prosecution agreements, monitoring agreements, consent decrees,
settlement orders, plans of correction or similar agreements with or imposed by any Governmental Authority. Additionally, neither the
Company nor any of its employees, officers, directors, or, to the knowledge of the Company, agents, has been excluded, suspended or debarred
from participation in any government health care program or human research study, clinical trial or investigation or, to the knowledge
of the Company, is subject to an inquiry, investigation, proceeding, or other similar action by any Government Authority that would reasonably
be expected to result in debarment, suspension, or exclusion.
(p) Post-Market
Reporting Obligations. The Company is complying in all material respects with all applicable regulatory post-market reporting obligations,
including, without limitation, adverse event reporting requirements set forth by the EU Medical Device Directives, as applicable, and,
to the extent applicable, their national implementing laws in the European Union member states.
(q) No
Shutdowns or Prohibitions. Except as disclosed in the Registration Statement and the Prospectus, the Company has not had any product,
clinical laboratory or manufacturing site (whether Company-owned or that of a third party manufacturer for the Company’s products
or product candidates) subject to a governmental authority (including FDA) shutdown or import or export prohibition, nor received any
FDA Form 483 or other governmental authority or designated organization notice of inspectional observations, “warning letters,”
“untitled letters,” requests to make changes to the Company’s products, processes or operations, or similar correspondence
or notice from the FDA or other governmental authority or designated organization alleging or asserting material noncompliance with any
applicable Health Care Laws. To the Company’s knowledge, neither the FDA or other governmental authority or designated organization
is considering such action.
(r) No
Safety Notices. Except as disclosed in the Registration Statement and the Prospectus, there have been no recalls, field notifications,
field corrections, market withdrawals or replacements, warnings, “dear doctor” letters, investigator notices, safety alerts
or other notice of action relating to an alleged lack of safety, efficacy, or regulatory compliance of the Company’s products (“Safety
Notices”) and (ii) to the Company’s knowledge, there are no facts that would reasonably be expected to result
in (x) a Safety Notice with respect to the Company’s products or services, (y) a change in labeling of any of the Company’s
respective products or services, or (z) a termination or suspension of marketing or testing of any the Company’s products
or services
(s) Intellectual
Property. The Company and each of its subsidiaries owns, possesses, or can acquire on reasonable terms, all Intellectual Property
(as defined below) necessary for the conduct of the Company’s and it subsidiaries’ business as now conducted or as proposed
to be conducted, as described in the Registration Statement, the Prospectus, the Issuer Free Writing Prospectuses and the documents incorporated
by reference therein to be conducted. The Company and its subsidiaries have complied in all material respects with the terms of each
agreement pursuant to which Intellectual Property has been licensed to the Company or any subsidiary, and all such agreements are in
full force and effect. Furthermore, (A) to the knowledge of the Company, there is no infringement, misappropriation or violation
by third parties of any Intellectual Property of the Company; (B) there is no pending or, to the knowledge of the Company, threatened,
action, suit, proceeding or claim by others challenging the Company’s or any of its subsidiaries’ rights in or to any such
Intellectual Property, neither the Company nor any of its subsidiaries has received any notice of any such claim, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; (C) there are no third parties who have rights to any
Company-owned Intellectual Property, including no liens, security interest, or other encumbrances, except for (i) customary reversionary
rights of third-party licensors with respect to Intellectual Property that is disclosed in the Registration Statement, the Prospectus,
the Issuer Free Writing Prospectuses and the documents incorporated by reference therein as licensed to the Company or one or more of
its subsidiaries or (ii) rights or Intellectual Property that are not material to the Company; (D) the Intellectual Property
owned by the Company and its subsidiaries, and to the knowledge of the Company, the Intellectual Property licensed to the Company and
its subsidiaries, has not been adjudged invalid or unenforceable, in whole or in part, and there is no pending or, to the knowledge of
the Company, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property;
(E) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others that the Company
or any of its subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights of
others, and neither the Company nor any of its subsidiaries has received any written notice of such claim; (F) the conduct of the
Company’s and its subsidiaries’ business as now conducted or as proposed to be conducted does not and will not infringe or
otherwise violate any Intellectual Property or other proprietary right of any third party; (G) to the Company’s knowledge,
no employee of the Company or any of its subsidiaries is in or has ever been in violation of any term of any employment contract, patent
disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement
or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment
with the Company or any of its subsidiaries or actions undertaken by the employee while employed with the Company or any of its subsidiaries;
(H) there is no prior art or public or commercial activity of which the Company is aware that may render any patent included in
the Intellectual Property of the Company invalid or that would preclude the issuance of any patent on any patent application included
in such Intellectual Property, which has not been disclosed to the U.S. Patent and Trademark Office or the relevant foreign patent authority,
as the case may be; (I) to the Company’s knowledge, the issued patents included in the Intellectual Property of the Company
are valid and enforceable and the Company is unaware of any facts that would preclude the issuance of a valid and enforceable patent
on any pending patent application included in such Intellectual Property; (J) the Company has taken reasonable steps necessary to
secure the interests of the Company in the Intellectual Property purported to be owned by the Company from all employees, consultants,
agents or contractors that developed (in whole or in part) such Intellectual Property; (K) no government funding, facilities or
resources of a university, college, other educational institution or research center was used in the development of any Intellectual
Property that is owned or purported to be owned by the Company that would confer upon any governmental agency or body, university, college,
other educational institution or research center any claim or right in or to any such Intellectual Property; (L) to the Company’s
knowledge, none of the technology employed by the Company has been obtained or is being used by the Company in violation of the rights
of any entity; and (M) all patents and patent applications owned by or licensed to the Company or any of its subsidiaries have been
duly and properly filed, prosecuted and maintained in all material respects, have been assigned to the Company or the licensor to the
Company, and the patents are subsisting and have not lapsed and the patent applications in the Intellectual Property are subsisting and
have not been abandoned. “Intellectual Property” shall mean all patents, patent applications, trade and service
marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, domain names, technology,
know-how and other intellectual property in the United States and foreign jurisdictions.
(t) Clinical
Trials. The studies, tests and preclinical and clinical trials and investigations conducted by or on behalf of, or sponsored by,
the Company, or in which the Company has participated, that are described in the Registration Statement or the Prospectus or the documents
incorporated by reference therein, or the results of which are referred to in the Registration Statement or the Prospectus or the documents
incorporated by reference therein, were and, if still pending, are being conducted in all material respects in accordance with all applicable
Health Care Laws (as defined below), standard medical and scientific research procedures and any applicable rules, regulations and policies
of the jurisdiction in which such trials, studies and investigations are being conducted; the descriptions of the results of such studies,
tests, trials and investigations contained in the Registration Statement or the Prospectus or the documents incorporated by reference
therein, are accurate and complete descriptions in all material respects and fairly present the data therefrom; the Company has no knowledge
of any studies, tests, trials or investigations not described in the Registration Statement or the Prospectus or the documents incorporated
by reference therein, the results of which are inconsistent with or reasonably call into question the results of the studies, tests,
trials and investigations described in the Registration Statement or the Prospectus or the documents incorporated by reference therein;
the Company has not received any notices or other correspondence from the FDA, the European Union NCAs, or any other applicable foreign,
state or local governmental body exercising comparable authority or any Institutional Review Board or comparable authority or designated
organization requiring or threatening the termination, suspension or material modification of any studies, tests or preclinical or clinical
trials or investigations conducted by or on behalf of, or sponsored by, the Company or in which the Company has participated, and, to
the Company’s knowledge, there are no reasonable grounds for the same; and no investigational device exemption or comparable submission
filed by or on behalf of the Company has been terminated or suspended by the FDA or any other applicable Governmental Authority.
(u) Market
Capitalization. At the time the Registration Statement was or will be originally declared effective, and at the time the Company’s
most recent Annual Report on Form 20-F was filed with the Commission, the Company met or will meet the then applicable requirements
for the use of Form F-3 under the Securities Act, including, but not limited to, General Instruction I.B.1/I.B.5 of Form F-3.
The aggregate market value of the outstanding voting and non-voting common equity (as defined in Securities Act Rule 405) of
the Company held by persons other than affiliates of the Company (pursuant to Securities Act Rule 144, those that directly, or indirectly
through one or more intermediaries, control, or are controlled by, or are under common control with, the Company) (the “Non-Affiliate
Shares”), was equal to or greater than $75.0 million (calculated by multiplying (x) the highest price at which
the common equity of the Company closed on the Exchange within 60 days of the date of this Agreement times (y) the number of Non-Affiliate
Shares). 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.5 of Form F-3) with the Commission at least 12 calendar months previously reflecting its status as
an entity that is not a shell company.
(v) 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 reasonably be expected
to 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 20-F, indicating that it (i) has failed to pay any dividend or sinking
fund installment on preferred shares 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 reasonably be expected to have a Material Adverse
Effect.
(w) 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 would 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.
(x) Broker/Dealer
Relationships. Neither the Company nor any of the subsidiaries (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).
(y) 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.
(z) Taxes.
The Company and its subsidiaries have timely filed all federal, state, local and foreign income and franchise and any other tax returns
required to be filed and are not in default in the payment of any taxes which were payable pursuant to said returns or any assessments
with respect thereto, other than any which the Company or any of its subsidiaries is contesting in good faith. There is no pending dispute
with any taxing authority relating to any of such returns, and the Company has no knowledge of any proposed liability for any tax to
be imposed upon the properties or assets of the Company or any of its subsidiaries for which there is not an adequate reserve reflected
in the Company’s financial statements included in the Registration Statement, Prospectus and documents incorporated by reference
therein. The statements set forth in the Registration Statement under the caption “Material United States Federal Income and Belgium
Tax Considerations,” insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate,
complete and fair in all material respects.
(aa) Stamp
Taxes. No stamp, registration, sales, documentary, capital, issuance, transfer or other similar taxes or duties (“Stamp
Taxes”) are payable by or on behalf of the Agent in any relevant taxing jurisdiction on or in connection with (i) the
creation, issuance or delivery by the Company of the Placement Shares, (ii) the placement or purchase by the Agent of the Placement
Shares in the manner contemplated by this Agreement, (iii) the resale and delivery by the Agent of the Placement Shares in the manner
contemplated by this Agreement, (iv) the execution and delivery of this Agreement, or (vii) the consummation or completion
of the transactions contemplated by this Agreement, except for (x) a Belgian stock exchange tax, if the Agent acts, for purposes
of the Belgian stock exchange tax, as a professional intermediary on behalf of purchasers of Placement Shares with habitual residence
in Belgium in relation to the purchase of Placement Shares (secondary market transaction) or if the Agent is resident in Belgium for
tax purposes or carries on business through a permanent establishment in Belgium (in both cases unless an exemption applies), (y) documentary
duties that could become due on deeds and certificates issued by Belgian officials (notaries, bailiffs and clerks) and banking institutions,
ranging from EUR 0.15 to EUR 100, provided that such deeds and certificates are drawn up or executed in Belgium and (z) a general,
fixed registration tax of EUR 50 due on the voluntary registration in Belgium of any document.
(bb) Passive
Foreign Investment Company. The Company does not believe that it was a “passive foreign investment company” (“PFIC”)
for U.S. federal income tax purposes for the taxable year ended December 31, 2021 and it does not expect to be treated as a PFIC
for the current taxable year.
(cc) Ownership
of Assets. The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in
the Registration Statement, Prospectus, Issuer Free Writing Prospectus and the documents incorporated by reference therein as being
owned by them, in each case free and clear of all liens, claims, security interests, other encumbrances or defects except such as are
described in the Registration Statement, Prospectus, Issuer Free Writing Prospectus and the documents incorporated by reference
therein. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases
with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business
of the Company or its subsidiaries.
(dd) Compliance
with Environmental Laws. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its
subsidiaries is in violation of any applicable statute, rule, regulation, decision or order of any Governmental Authority or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”),
owns or operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site
disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation,
contamination, liability or claim would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
and the Company is not aware of any pending investigation which might lead to such a claim. Neither the Company nor any of its subsidiaries
anticipates incurring any material capital expenditures relating to compliance with Environmental Laws.
(ee) Internal
Controls. The Company and its subsidiaries maintain a system of “internal controls over financial reporting” (as defined
in Rule 13a-15(f) of the Exchange Act) sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with international financial reporting standards as issued by the International Accounting Standards
Board and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (v) the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement and the
Prospectus, the Company’s internal control over financial reporting is effective and none of the Company, its board of directors
and audit committee is aware of any “significant deficiencies” or “material weaknesses” (each as defined by the
Public Company Accounting Oversight Board) in its internal control over financial reporting, or any fraud, whether or not material, that
involves management or other employees of the Company and its subsidiaries who have a significant role in the Company’s internal
controls; and since the end of the latest audited fiscal year, there has been no change in the Company’s internal control over
financial reporting (whether or not remediated) that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting. The Company’s board of directors has, subject to the exceptions, cure periods and the
phase in periods specified in the applicable stock exchange rules (“Exchange Rules”), validly appointed
an audit committee to oversee internal accounting controls whose composition satisfies the applicable requirements of the Exchange Rules and
the Company’s board of directors and/or the audit committee has adopted a charter that satisfies the requirements of the Exchange
Rules.
(ff) Disclosure
Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined
in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in 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 controls
and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness
of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act
(gg) Xxxxxxxx-Xxxxx.
The Company is in compliance with all applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission
thereunder.
(hh) No
Brokers or Finders. Other than as contemplated by this Agreement, the Company has not incurred and will not incur any liability for
any finder’s or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
(ii) Labor
Matters. No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’
principal suppliers, contractors or customers, that would reasonably be expected to result in a Material Adverse Effect.
(jj) 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”).
(kk) Anti-Bribery
and Anti-Money Laundering Laws. None of the Company nor any of its subsidiaries, nor any of their directors, officers or employees,
nor, to the Company’s knowledge, any agent, affiliate or representative of the Company or its subsidiaries has violated nor will
its participation in the offering violate, and the Company and each of its subsidiaries has instituted and maintains policies and procedures
designed to ensure continued compliance with, each of the following laws: (A) anti-bribery laws, including but not limited to, any
applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to implement
the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17,
1997, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Brxxxxx Xxx 0000, or any other law, rule or
regulation of similar purposes and scope or (B) anti-money laundering laws, including but not limited to, applicable federal, state,
international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including, without limitation,
Title 18 U.S. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principles or
procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United
States is a member and with which designation the United States representative to the group or organization continues to concur, all
as amended, and any executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses
issued thereunder.
(ll) 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.
(mm) ERISA
and Employee Benefits Matters. (A) To the knowledge of the Company, no “prohibited transaction” as defined under
Section 406 of ERISA (as defined below) or Section 4975 of the Code (as defined below) and not exempt under ERISA Section 408
and the regulations and published interpretations thereunder has occurred with respect to any Employee Benefit Plan (as defined below).
At no time has the Company or any ERISA Affiliate (as defined below) maintained, sponsored, participated in, contributed to or has or
had any liability or obligation in respect of any Employee Benefit Plan subject to Part 3 of Subtitle B of Title I of ERISA, Title
IV of ERISA, or Section 412 of the Code or any “multiemployer plan” as defined in Section 3(37) of ERISA or any
multiple employer plan for which the Company or any ERISA Affiliate has incurred or could incur liability under Section 4063 or
4064 of ERISA. No Employee Benefit Plan provides or promises, or at any time provided or promised, retiree health, life insurance, or
other retiree welfare benefits except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or
similar state law. Each Employee Benefit Plan is and has been operated in material compliance with its terms and all applicable laws,
including but not limited to ERISA and the Code and, to the knowledge of the Company, no event has occurred (including a “reportable
event” as such term is defined in Section 4043 of ERISA) and no condition exists that would subject the Company or any ERISA
Affiliate to any material tax, fine, lien, penalty or liability imposed by ERISA, the Code or other applicable law. Each Employee Benefit
Plan intended to be qualified under Code Section 401(a) is so qualified and has a favorable determination or opinion letter
from the IRS upon which it can rely, and any such determination or opinion letter remains in effect and has not been revoked; to the
knowledge of the Company, nothing has occurred since the date of any such determination or opinion letter that is reasonably likely to
adversely affect such qualification; (B) with respect to each Foreign Benefit Plan (as defined below), such Foreign Benefit Plan
(1) if intended to qualify for special tax treatment, meets, in all material respects, the requirements for such treatment, and
(2) if required to be funded, is funded to the extent required by applicable law, and with respect to all other Foreign Benefit
Plans, adequate reserves therefor have been established on the accounting statements of the applicable Company or subsidiary; (C) the
Company does not have any obligations under any collective bargaining agreement with any union and no organization efforts are underway
with respect to Company employees. As used in this Agreement, “Code” means the Internal Revenue Code of 1986,
as amended; “Employee Benefit Plan” means any “employee benefit plan” within the meaning of Section 3(3) of
ERISA, including, without limitation, all stock purchase, stock option, stock-based severance, employment, change-in-control, medical,
disability, fringe benefit, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements,
programs, policies or other arrangements, whether or not subject to ERISA, under which (x) any current or former employee, director
or independent contractor of the Company or its subsidiaries has any present or future right to benefits and which are contributed to,
sponsored by or maintained by the Company or any of its respective subsidiaries or (y) the Company or any of its subsidiaries has
had or has any present or future obligation or liability; “ERISA” means the Employee Retirement Income Security
Act of 1974, as amended; “ERISA Affiliate” means any member of the company’s controlled group as defined
in Code Section 414(b), (c), (m) or (o); and “Foreign Benefit Plan” means any Employee Benefit Plan
established, maintained or contributed to outside of the United States or which covers any employee working or residing outside of the
United States.
(nn) 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 or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(oo) Agent
Purchases. The Company acknowledges and agrees that the Agent has informed the Company that the Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Ordinary Shares for its own account while this Agreement is in effect,
provided, that the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agent.
(pp) 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.
(qq) Insurance.
The Company and each of its subsidiaries carries, or is covered by, insurance from reputable insurers in such amounts and covering such
risks as is adequate for the conduct of its business and the value of its properties and the properties of its subsidiaries and as is
customary for companies engaged in similar businesses in similar industries; all policies of insurance and any fidelity or surety bonds
insuring the Company or any of its subsidiaries or its business, assets, employees, officers and directors are in full force and effect;
the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; there are
no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither the Company nor any of its subsidiaries has been refused any insurance
coverage sought or applied for; and neither the Company nor any of its subsidiaries has reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not reasonably be expected to result in a Material Adverse Effect.
(rr) OFAC.
(i) Neither
the Company nor any of its subsidiaries, nor any or their directors, officers or employees, nor, to the Company’s knowledge, any
agent, affiliate or representative of the Company or its subsidiaries, is an individual or entity that is, or is owned or controlled
by an individual or entity that is:
(1) 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
(2) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, the so-called
Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea and Syria).
(ii) Neither
the Company nor any of its subsidiaries will, 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 individual or entity:
(1) to
fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of
such funding or facilitation, is the subject of Sanctions; or
(2) in
any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating
in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For
the past five years, neither the Company nor any of its subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any
dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
(ss) 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. The
Company is a “foreign private issuer” within the meaning of Rule 405 under the Act.
(tt) 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 23 below), did not, does not and will not 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.
(uu) Statistical
Information. Any third-party statistical and market-related data included in the Registration Statement and the Prospectus are based
on or derived from sources that the Company believes to be reliable and accurate in all material respects.
(vv) Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently
conducted, free and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its
subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures,
and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and
security of all IT Systems and data, including Personal Data (as defined below), used in connection with their businesses. “Personal
Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social
security number or tax identification number, driver’s license number, passport number, credit card number, bank information, or
customer or account number; (ii) any information which would qualify as “personally identifying information” under the
Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR (as defined below); (iv) any
information which would qualify as “protected health information” under the Health Insurance Portability and Accountability
Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act; and (v) any other piece of information
that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related
to an identified person’s health or sexual orientation. There have been no material breaches, violations, outages or unauthorized
uses of or accesses to same, nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries
at all prior times have been and are presently in material compliance with all applicable laws or statutes and all judgments, orders,
rules, and regulations of any court or arbitrator or governmental or regulatory authority, internal policies, and contractual obligations
relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from
unauthorized use, access, misappropriation or modification. The Company and its subsidiaries have at all times made all disclosures to
users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained
in any policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis
of Personal Data have been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material
respect.
(ww) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation and to the extent applicable to the Company,
HIPAA, and the Company and its subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25,
2018, have been and currently are in compliance with, the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679) (collectively, the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company and
its subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects
with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and
analysis of Personal Data (the “Policies”). The Company and its subsidiaries have at all times made all disclosures
to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained
in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or
requirements in any material respect. The Company further certifies that neither it nor any subsidiary: (i) has received notice
of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge
of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying
for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a
party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.
(xx) Compliance
with Laws. The Company and each of its subsidiaries holds, and is operating in compliance in all material respects with, all franchises,
grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority, (self-)regulatory
body or designated organization required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits,
easements, consents, certifications and orders are valid and in full force and effect; and neither the Company nor any of its subsidiaries
has received notice of any revocation or modification of any such franchise, grant, authorization, license, permit, easement, consent,
certification or order or has reason to believe that any such franchise, grant, authorization, license, permit, easement, consent, certification
or order will not be renewed in the ordinary course; and the Company and each of its subsidiaries is in compliance in all material respects
with all applicable federal, state, local and foreign laws, regulations, orders and decrees.
(yy) Compliance
with Occupational Laws. The Company and each of its subsidiaries (A) is in compliance, in all material respects, with any and
all applicable foreign, federal, state and local laws, rules, regulations, treaties, statutes and codes promulgated by any and all Governmental
Authorities (including pursuant to the Occupational Health and Safety Act) relating to the protection of human health and safety in the
workplace (“Occupational Laws”); (B) has received all material permits, licenses or other approvals required
of it under applicable Occupational Laws to conduct its business as currently conducted; and (C) is in compliance, in all material
respects, with all terms and conditions of such permit, license or approval. No action, revocation proceeding, writ, injunction or claim
is pending or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries relating to Occupational Laws,
and the Company does not have knowledge of any facts, circumstances or developments relating to its operations or cost accounting practices
that could reasonably be expected to form the basis for or give rise to such actions, suits, investigations or proceedings.
(zz) Disclosure
of Legal Matters. There are no statutes, regulations, legal or governmental proceedings or contracts or other documents required
to be described in the Registration Statement, Prospectus, Issuer Free Writing Prospectus or documents incorporated by reference
therein or included as exhibits to the Registration Statement that are not described or included as required.
(aaa) Share
Options. Except as described in the Registration Statement and the Prospectus, there are no options, warrants, agreements, contracts
or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the Company or any
subsidiary of the Company. The description of the Company’s share option, warrants, share bonus and other share plans or arrangements
(the “Company Share Plans”), and the options and warrants (together, the “Options”)
or other rights granted thereunder, set forth in the Registration Statement, the Prospectus and the documents incorporated by reference
therein accurately and fairly presents the information required to be shown with respect to such plans, arrangements, options, warrants
and rights. Each grant of an Option (A) was duly authorized no later than the date on which the grant of such Option was by its
terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the Company
(or a duly constituted and authorized committee thereof) and any required shareholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto and (B) was
made in accordance with the terms of the applicable Company Share Plan, and all applicable laws and regulatory rules or requirements,
including all applicable federal securities laws.
(bbb) Immunity.
Neither the Company nor any of its properties or assets has any immunity from the jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of the
Kingdom of Belgium.
(ccc) Valid
Choice of Law; Enforceability. The choice of laws of the State of New York as the governing law of this Agreement is a valid choice
of law under the laws of Belgium and will be honored by the courts of Belgium, subject to the restrictions described under the caption
“Enforcement of Liabilities” and “Enforcement of Judgments” in the Registration Statement and the Prospectus.
The Company has the power to submit, and pursuant to Section 18 of this Agreement, has legally, validly, effectively and
irrevocably submitted, to the personal jurisdiction of each of New York state and the United States federal court sitting in the City
of New York and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in
such court. Any final judgment for a fixed or readily calculable sum of money rendered by a New York Court having jurisdiction under
its own domestic laws and recognized by the Belgian courts as having jurisdiction to give such final judgment in respect of any suit,
action or proceeding against the Company based upon this Agreement and any instruments or agreements entered into for the consummation
of the transactions contemplated herein would be declared enforceable against the Company. The Company is not aware of any reason why
the enforcement in Belgium of such a New York Court judgment would be, as of the date hereof, contrary to the public policy of Belgium.
(ddd) No
Public Offering in European Economic Area. The Company has not made and will not make an offer to the public of the Placement Shares
in any member state of the European Economic Area.
(eee) Absence
of Market Abuse. The Company has not taken, directly or indirectly, in relation to the sale of the Placement Shares or otherwise,
any action or engaged in any course of conduct in breach of, and has taken adequate measures and has adequate procedures in place in
order to ensure compliance with, and none of the issue of the Placement Shares, the sale of the Placement Shares and the consummation
of the transactions contemplated by this Agreement will constitute a violation by the Company of, any applicable European Union, Belgian,
U.S. or any other relevant jurisdiction “insider dealing,” “xxxxxxx xxxxxxx” or similar legislation and, so far
as the Company is aware, no person acting on its behalf has breached or is in breach of any relevant market abuse or xxxxxxx xxxxxxx
law or regulation, including any reporting obligations to the Commission, the Financial Services and Markets Authority or any other authority.
The Company has not taken, nor will the Company take, directly or indirectly, any action which is designed, or would be reasonably expected,
to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Placement Shares or to result in a violation of applicable laws, including Regulation M under the Exchange
Act and the Market Abuse Regulation and its implementing rules.
(fff) Emerging
Growth Company Status. From the time of the initial filing of the Company’s first registration statement with the Commission
through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of
the Securities Act (an “Emerging Growth Company”).
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 the Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agent promptly of the time
when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the
Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission
for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will
prepare and file with the Commission, promptly upon the Agent’s request, any amendments or supplements to the Registration Statement
or Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the
Placement Shares by the Agent (provided, however, that the failure of the Agent to make such request shall not relieve
the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect to
the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the
Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted to the Agent within a reasonable period of time before
the filing and the Agent has not objected thereto (provided, however, that the failure of the Agent to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations
and warranties made by the Company in this Agreement and provided, further, that the only remedy the Agent shall have with
respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement) 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 relating to the Placement Shares 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 by reference therein,
to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination to file
or not file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s reasonable
opinion or reasonable objections, shall be made exclusively by the Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company will comply in all material
respects with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective
due dates (taking into account any extensions available under the Exchange Act) all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or
under the Exchange Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B under the
Securities Act, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant
to said Rule 430B and to notify the Agent promptly of all such filings relating to the Placement Shares. If during such period any
event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading,
or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities
Act, the Company will promptly notify the Agent to suspend the offering of Placement Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission
or effect such compliance; provided, however, that the Company may delay 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. Prior to the date of the first Placement Notice, 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) Earning
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earning statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act. The Company’s compliance with the periodic reporting
requirements of the Exchange Act shall be deemed to satisfy the requirements of this Section 7(f).
(g) Use
of Proceeds. The Company will use the Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly, offer to sell,
sell, contract to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement Shares
offered pursuant to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any rights to
purchase or acquire, Ordinary Shares during the period beginning on the fifth (5th) Trading Day immediately prior to the
date on which any Placement Notice is delivered to the 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) (the “Notice Period”); and will not directly or indirectly in any other
“at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any Ordinary Shares (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Ordinary Shares, warrants or any rights to purchase or acquire, Ordinary Shares prior to the
sixtieth (60th) day immediately following the termination of this Agreement; provided, however, that such restrictions
will not be required in connection with the Company’s issuance or sale of (i) Ordinary Shares, options to purchase
Ordinary Shares, warrants to purchase Ordinary Shares or Ordinary Shares issuable upon the exercise of options or warrants, pursuant
to any employee or director stock option, warrant or benefits plan, stock ownership plan or dividend reinvestment plan (but not
Ordinary Shares subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or
hereafter implemented, (ii) Ordinary Shares issuable upon conversion of securities or the exercise of warrants, options or
other rights in effect or outstanding, and disclosed in filings by the Company available on XXXXX or otherwise in writing to the
Agent and (iii) Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares as consideration for
mergers, acquisitions, other business combinations or strategic alliances occurring after the date of this Agreement which are not
issued for capital raising purposes.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agent promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agent or its representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents
and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Agent may reasonably
request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company shall disclose in (x) its Annual Report on Form 20-F and
(y) any Periodic Report on Form 6-K under which the Company furnishes its quarterly results of operations for the prior quarter,
in each case to be filed by the Company with the Commission from time to time, the number of the Placement Shares sold through the Agent
under this Agreement, and the net proceeds to the Company from the sale of the Placement Shares pursuant to this Agreement during the
relevant fiscal year and the fourth quarter of such fiscal year (in the case of an Annual Report on Form 20-F) or the relevant quarter
(in the case of a Periodic Report on Form 6-K in which the Company furnishes its quarterly results of operations for the relevant
quarter). The Company agrees that on such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement
with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement will
set forth, within the relevant period, the amount of Placement Shares sold through the Agent, the 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 20-F under the Exchange Act (including any Form 20-F/A containing amended financial information or a material amendment
to the previously filed Form 20-F);
(iii) furnishes its quarterly
results of operations on Form 6-K under the Exchange Act; or
(iv) files a current report on
Form 6-K containing amended financial information under the Exchange Act that is incorporated by reference into the Registration
Statement (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 6-K is material)
with a certificate dated the Representation Date, in the form attached hereto as Exhibit 7(l), modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended or supplemented. The requirement to provide a certificate under this
Section 7(l) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending
or a Suspension is in effect, which waiver shall continue until the earlier to occur of the date the Company delivers instructions for
the sale of Placement Shares hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring
Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation
Date at which no Placement Notice was pending or 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 the form attached hereto
as Exhibit 7(l) dated as of the date of the Placement Notice or the date that the instructions for the sale of Placement
Shares are issued.
(m) Legal
Opinions. (1) With respect to the opinions and negative assurances required under Section 7(m)(i) and Section 7(m)(ii)
below, prior to the date of the first Placement Notice, (2) with respect to the opinions and negative assurances required under Section
7(m)(i) below, 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, and (3) with
respect to the opinions required under Section 7(m)(iii) below, in connection with any Placement Notice, on the relevant Settlement
Date on which the relevant Placement Shares are issued, the Company shall cause to be furnished to the Agent a written opinion (which,
in the case of the opinion of Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and Xxxxx, P.C (“Xxxxx Xxxxx”), shall contain
negative assurances) each of (i) Xxxxx Xxxxx and (ii) NautaDutilh BV/SRL (“NautaDutilh”), or other counsel
satisfactory to the Agent, relating to, inter alia, the execution of this Agreement and the transactions governed hereby and (iii)
NautaDutilh, or other counsel satisfactory to the Agent, relating to, inter alia, the execution of this Agreement, the transactions
governed hereby and the Placement specified in the applicable Placement Notice, in each case in the forms and substance satisfactory
to the Agent and its counsel, substantially similar to the forms 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 the Agent no more than one opinion of each firm hereunder per calendar quarter; provided, further,
that in lieu of the opinion and negative assurances set forth in Section 7(m)(i) 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 Section 7(m)(i) to the same extent as if it were dated the date of such letter (except that statements
in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the
date of the Reliance Letter).
(n) Comfort
Letter. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause its independent registered public accounting firm to
furnish the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall
meet the requirements set forth in this Section 7(n); provided, that if reasonably requested by the Agent, the Company
shall cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence of any material
transaction or event requiring the filing of a current report on Form 6-K containing financial information (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 Public Company Accounting Oversight Board (PCAOB), (ii) stating, as of such
date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’
“comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial
Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included
in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letter.
(o) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or would reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Ordinary Shares or (ii) sell, bid for, or purchase Ordinary Shares in violation of Regulation M, or pay anyone
any compensation for soliciting purchases of the Placement Shares other than the Agent.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its subsidiaries
will be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,”
as such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity as agent
hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity as such)
will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act),
required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent, to
qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under
the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain
such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (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).
(s) Xxxxxxxx-Xxxxx
Act. The Company and the subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with the IFRS 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 the IFRS, (iii) ensure that receipts and expenditures of the Company are being
made only in accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable
assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that
could have a material effect on its financial statements. The Company and the subsidiaries will maintain such controls and other procedures,
including, without limitation, those required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act, and the applicable regulations thereunder
that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and
forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including
its principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely
decisions regarding required disclosure and to ensure that material information relating to the Company or the subsidiaries is made known
to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(t) Secretary’s
Certificate; Further Documentation. 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
Articles of Association of the Company, (ii) any other organizational documents of the Company, (iii) the resolutions of the
Board of Directors of the Company 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 with respect to which the Company is obligated to deliver
a certificate pursuant to section 7(l), the Company shall have furnished to the Agent such further information, certificates and documents
as the Agent may reasonably request.
(u) Emerging
Growth Company Status. The Company will promptly notify the Agent if the Company ceases to be an Emerging Growth Company at any time
during the term of this Agreement.
8. Payment
of Expenses. The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing
or electronic delivery of the Prospectus as originally filed and of each amendment and supplement thereto relating to the Placement Shares,
in such number as the Agent shall reasonably 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 the Agent including but not limited to the fees and expenses of the counsel to the Agent, payable upon the execution of this
Agreement, in an amount not to exceed (a) $70,000 in connection with the execution of this Agreement, (b) $20,000 in connection
with 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 (excluding, for the avoidance of doubt, the date of this Agreement), and (c) $15,000 in connection
with each program “refresh” (i.e. filing of a new registration statement, prospectus or prospectus supplement relating
to the Placement Shares and/or an amendment of this Agreement), (vi) the qualification or exemption of the Placement Shares under
state securities laws in accordance with the provisions of Section 7(r) hereof, including filing fees, but excluding
fees of the Agent’s counsel, (vii) the printing and delivery to the Agent of copies of any Permitted Free Writing Prospectus
(as defined below) and the Prospectus and any amendments or supplements thereto in such number as the Agent shall reasonably 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 Ordinary Shares, (x) the filing and other fees incident to any review by FINRA of the terms
of the sale of the Placement Shares including the fees of the Agent’s counsel (subject to the cap, set forth in clause (v) above),
and (xi) the fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange.
9. Conditions
to the 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 material documents incorporated by reference therein so that, in the case of the Registration Statement,
it will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) No
Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinion is material, or
omits to state a fact that in the Agent’s reasonable opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any material adverse change in the authorized share capital of the Company or any Material Adverse Effect or any development
that would reasonably be expected to cause a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any
of the Company’s securities (other than asset backed securities) by any rating organization or a public announcement by any rating
organization that it has under surveillance or review its rating of any of the Company’s securities (other than asset backed securities),
the effect of which, in the case of any such action by a rating organization described above, in the reasonable judgment of the Agent
(without relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable
to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinions. The Agent shall have received the opinions required to be delivered pursuant to Section 7(m) on or before
the date on which such delivery of such opinions is required pursuant to Section 7(m).
(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or
before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(n).
(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on
or before the date on which delivery of such certificate is required pursuant to Section 7(l).
(h) No
Suspension. Trading in the Ordinary Shares shall not have been suspended on the Exchange and the Ordinary Shares shall not have been
delisted from the Exchange.
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company
shall have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents as the Agent
may reasonably request. 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 (i) approved for listing on the Exchange, subject only to notice of
issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to,
the issuance of any Placement Notice and the Exchange shall have reviewed such application and not provided any objections thereto.
(l) FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable
to the Agent as described in the Prospectus.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 12(a).
10. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective partners, members,
directors, officers, employees and agents and each person, if any, who controls the Agent or any affiliate within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company, which
consent shall not unreasonably be delayed or withheld;
(iii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon (A) any
failure of the settlement for sales of Placement Shares to occur on the applicable settlement date or (B) actions taken by or on
behalf of the Agent to avoid a settlement for sales of Placement Shares not otherwise occurring on the applicable Settlement Date (including
as result of the Agent (whether directly or indirectly, including by any broker acting on the Agent’s behalf or acting with respect
to such Placement Shares) purchasing any Ordinary Shares of the Company (whether in the open market or otherwise) in connection with
any “covering” or other transaction intended to mitigate any damages that would otherwise result from a failure of the settlement
for sales of Placement Shares to occur on the applicable Settlement Date, in each case, other than as a result of the gross negligence
or willful misconduct of the Agent; and
(iv) against
any and all expense whatsoever, as incurred (including the reasonable and documented fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission
(whether or not a party), to the extent that any such expense is not paid under (i) or (ii) above,
provided,
however, that the indemnity set forth in this Section 10(a) shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made solely in reliance
upon and in conformity with the Agent Information (as defined below).
(b) Agent
Indemnification. The Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described
in the indemnity contained in Section 10(a), as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto), the Prospectus (or any
amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with information relating to the Agent and furnished to the Company in writing by the Agent expressly for use therein.
The Company hereby acknowledges that the only information that the Agent has furnished to the Company expressly for use in the
Registration Statement, the Prospectus or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the
statements set forth in the seventh and eighth paragraphs under the caption “Plan of Distribution” in the
Prospectus (the “Agent Information”).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under
this Section 10, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section 10 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 10 unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and
it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent
that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action
from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel
reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election
to assume the defense, the indemnifying party will not be liable to the indemnified party for any other legal expenses except as provided
below and except for the reasonable and documented 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 and documented fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable and
documented fees, disbursements and other charges of more than one separate firm (plus local counsel) admitted to practice in such jurisdiction
at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle
or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 10 (whether or not any indemnified party is a party thereto), unless such settlement, compromise
or consent (1) includes an express and unconditional release of each indemnified party, in form and substance reasonably satisfactory
to such indemnified party, from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for reasonable and documented fees and expenses of counsel for which it is entitled to reimbursement under this
Section 10, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 10(a)(ii) effected
without its written consent if (1) such settlement is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (2) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (3) such indemnifying party shall not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement.
(e) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 10 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient
from the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted) to which the Company and the Agent may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The relative benefits
received by the Company on the one hand and the Agent on the other hand shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received
by the Agent from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the
Agent, on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage,
or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company or the Agent, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the
Agent agree that it would not be just and equitable if contributions pursuant to this Section 10(e) were to be determined
by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in
respect thereof, referred to above in this Section 10(e) shall be deemed to include, for the purpose of this Section 10(e),
any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action
or claim to the extent consistent with Section 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(e),
the Agent shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 10(e),
any person who controls a party to this Agreement within the meaning of the Securities Act, any affiliates of the Agent and any officers,
directors, partners, employees or agents of the Agent or any of its affiliates, will have the same rights to contribution as that party,
and each director of the Company and each officer of the Company who signed the Registration Statement will have the same rights to contribution
as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for contribution may be made under this Section 10(e),
will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party
or parties from whom contribution may be sought from any other obligation it or they may have under this Section 10(e) except
to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from
whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 10(c) hereof,
no party will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required
pursuant to Section 10(c) hereof.
11. Representations
and Agreements to Survive Delivery. The indemnity and contribution set forth in Section 10 of this Agreement and all
representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or the Company (or any of
their respective officers, directors, employees or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.
12. Termination.
(a) The
Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since
the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any development
or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties, earnings, results
of operations or prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course
of business, which individually or in the aggregate, in the sole judgment of the Agent is material and adverse and makes it impractical
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if there has occurred
any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the
Ordinary Shares has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended
or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of
securities settlements or clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium
has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification and Contribution),
Section 11 (Representations and Agreements to Survive Delivery), Section 17 (Governing Law and Time; Waiver of
Jury Trial) and Section 18 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
If the Agent elects to terminate this Agreement as provided in this Section 12(a), the Agent shall provide the required notice
as specified in Section 13 (Notices).
(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 8, Section 10, Section 11, Section 17 and
Section 18 hereof shall remain in full force and effect notwithstanding such termination.
(c) The
Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon the issuance and sale of
all of the Placement Shares through the Agent on the terms and subject to the conditions set forth herein; provided, that the
provisions of Section 8, Section 10, Section 11, Section 17, and Section 18
shall remain in full force and effect.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), (c) or (d) above
or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall
in all cases be deemed to provide that Section 8, Section 10, Section 11, Section 17
and Section 18 shall remain in full force and effect.
(f) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
shall settle in accordance with the provisions of this Agreement. For the avoidance of doubt, upon termination of this Agreement, the
Company shall not be required to pay to the Agent any commission or other compensation with respect to any Placement Shares not otherwise
sold by the Agent under this Agreement.
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
|
Attention: |
Capital Markets |
| Facsimile: | (000) 000-0000 |
and:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
| Attention: | General Counsel |
| Facsimile: | (000) 000-0000 |
with a copy to:
Xxxxxx &
Xxxxxxx LLP
00000 Xxxx Xxxxx
Xxxxx
Xxx Xxxxx, XX 00000
| Attention: | Xxxxxxx X. Xxxxxxxx |
| Email: | Xxxxxxx.Xxxxxxxx@xx.xxx |
| Facsimile: | (000) 000-0000 |
and if to the
Company, shall be delivered to:
Nyxoah XX
Xxx Xxxxxxx Xxxxx 00
0000 Xxxxx-Xxxxx-Xxxxxxx, Xxxxxxx
| Attention: | General Counsel |
| Email: | xx.xxxxxx@xxxxxx.xxx;
xxxxx@xxxxxx.xxx |
with a copy to:
Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and
Xxxxx, P.C
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
| Attention: | Xxxx X. Xxxx, Esq. |
| Email: | XXxxx@xxxxx.xxx |
| Facsimile: | (000) 000-0000 |
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) by Electronic Notice (as defined below) as set forth in the next paragraph, (iii) on the
next Business Day after timely delivery to a nationally-recognized overnight courier or (iv) on the Business Day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement,
“Business Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open
for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic
mail address specified by the receiving party 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 (other than an automatic reply). Any party receiving
Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic
Notice”) which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic
Notice.
14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective successors
and the parties referred to in Section 10 hereof. References to any of the parties contained in this Agreement shall be deemed to
include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that the Agent may assign
its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s consent.
15. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Placement Shares.
16. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by
a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is
valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder
of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver
by a party shall arise in the absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power,
or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power, or privilege hereunder.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND
SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile, electronic
mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic
Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
20. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer
to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted,
supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated
thereunder.
21. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of the Agent,
which consent shall not be unreasonably withheld, conditioned or delayed, and the Agent represents, warrants and agrees that, unless
it obtains the prior written consent of the Company, 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,
which consent shall not be unreasonably withheld, conditioned or delayed, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses,
if any, listed in Exhibit 21 hereto are Permitted Free Writing Prospectuses.
22. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, shareholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not the Agent has advised or is advising the Company on other matters, and the Agent has no obligation to the Company with
respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither
the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from
those of the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of fiduciary duty
or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent and
its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of
Company.
23. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each
Settlement Date.
“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.
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NYXOAH SA |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Chief Executive Officer |
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ACCEPTED as of the date first-above written: |
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CANTOR XXXXXXXXXX & CO. |
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By: |
/s/ Xxxx Xxxxx |
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Name: |
Xxxx Xxxxx |
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Title: |
Managing Director |
SCHEDULE 1
Form of Placement Notice
| To: | Cantor Xxxxxxxxxx & Co.
Attention: [•] |
Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Nyxoah SA, a limited liability company (naamloze vennootschap/société
anonyme) organized under the laws of Belgium (the “Company”), and Cantor Xxxxxxxxxx & Co. (“Agent”),
dated [•], 2022, the Company hereby requests that the Agent sells up to [•] of the Company’s Ordinary Shares, no par
value, 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
Xxxxxxx
Xxxxxxx (xxxxxxx.xxxxxxx@xxxxxx.xxx)
Xxxx
Xxxxxx (Xxxx.Xxxxxx@xxxxxx.xxx)
An
Moonen (Xx.Xxxxxx@xxxxxx.xxx)
The Agent
Xxxxxx
Xxxxxxx (xxxxxxxx@xxxxxx.xxx)
With copies to:
XXXXX@xxxxxx.xxx
SCHEDULE 4
Subsidiaries
Incorporated by reference to Exhibit 8.1 of the Company’s
most recently filed Form 20-F, as applicable.
Exhibit 7(l)
Form of Representation Date Certificate
Pursuant to Section 7(l)
The undersigned, the duly qualified and elected
[•], of Nyxoah SA, a limited liability company (naamloze vennootschap/société anonyme) organized under the
laws of Belgium (the “Company”), does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(l) of
the Sales Agreement, dated [•], 2022 (the “Sales Agreement”), between the Company and Cantor Xxxxxxxxxx &
Co., that to the best of the knowledge of the undersigned:
(i) The representations and warranties of
the Company in Section 6 of the Sales Agreement are true and correct on and as of the date hereof with the same force and
effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date; provided, however, that such representations and warranties also
shall be qualified by the disclosure included or incorporated by reference in the Registration Statement and Prospectus; and
(ii) The Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.
Capitalized terms used herein
without definition shall have the meanings given to such terms in the Sales Agreement.
Date: [•]
Exhibit 21
Permitted Free Writing Prospectus
None.