Exhibit 1.2
IVERIC BIO, INC.
$100,000,000
COMMON STOCK
SALES AGREEMENT
Xxxxx 0, 0000
Xxxxx and Company, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Iveric bio, Inc., a Delaware corporation
(the “Company”), confirms its agreement (this “Agreement”) with Xxxxx and Company, LLC (“Cowen”),
as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through Cowen, acting as agent and/or principal, shares (the “Placement
Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), having
an aggregate offering price of up to $100,000,000. Notwithstanding anything to the contrary contained herein, the parties hereto
agree that compliance with the limitation set forth in this Section 1 on the number of shares of Common Stock
issued and sold under this Agreement shall be the sole responsibility of the Company, and Cowen shall have no obligation in connection
with such compliance. The issuance and sale of the Placement Shares through Cowen will be effected pursuant to the Registration
Statement (as defined below) being filed by the Company and which will be declared effective by the Securities and Exchange Commission
(the “Commission”), although nothing in this Agreement shall be construed as requiring the Company to use the
Registration Statement (as defined below) to issue the Placement Shares.
The Company has filed, or will file, in
accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the “Securities Act”), with the Commission a registration statement on Form S-3, including a base prospectus,
relating to certain securities, including the Common Stock, to be issued from time to time by the Company, and a sales agreement
prospectus (the “Sales Agreement Prospectus”) specifically relating to the Placement Shares, each of 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, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company
has furnished, or will furnish, to Cowen, for use by Cowen, copies of the Sales Agreement Prospectus included as part of such registration
statement, relating to the Placement Shares. The Company may file one or more additional registration statements from time to time
that will contain a base prospectus and related prospectus (which shall be a 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, as amended when it first becomes or became effective, 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 or deemed to be a part of such registration statement
pursuant to Rule 430B or 462(b) of the Securities Act, is herein called the “Registration Statement.”
The Sales Agreement Prospectus, including all documents incorporated therein by reference, included in the Registration Statement,
as it may be supplemented by any prospectus supplement, in the form in which such Sales Agreement Prospectus and/or any prospectus
supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities
Act, together with any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act regulations
(“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission
by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), 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), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the
Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference
therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of
any document with the Commission deemed to be incorporated by reference therein. 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 any copy filed
with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System or any successor thereto (“XXXXX”).
2. Placements.
Each time that the Company wishes to issue and sell any Placement Shares hereunder (each, a “Placement”), it
will notify Cowen by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters in accordance with which it desires such Placement Shares to be sold, which shall at a minimum include
the number of Placement Shares to be sold, 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 Trading Day (as defined in Section 3) and any minimum price below
which sales may not be made, a form of which containing such minimum sales parameters necessary is attached hereto as Schedule
1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule 2 attached hereto (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 Cowen set forth on Schedule 2, as such Schedule 2 may be amended in writing from time to time. The Placement Notice shall
be effective upon receipt by Cowen unless and until (i) in accordance with the notice requirements set forth in Section 4,
Cowen declines to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the
applicable number of Placement Shares have been sold, (iii) in accordance with the notice requirements set forth in Section 4,
the Company suspends or terminates the Placement Notice for any reason, in its sole discretion, (iv) the Company issues a
subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (v) this Agreement
has been terminated under the provisions of Section 11. The amount of any discount, commission or other compensation
to be paid by the Company to Cowen in connection with the sale of the Placement Shares shall be calculated in accordance with the
terms set forth in Schedule 3. It is expressly acknowledged and agreed that neither the Company nor Cowen will have any obligation
whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to Cowen
and Cowen 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 Cowen. Subject to the terms and conditions herein set forth, upon the Company’s delivery 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, Cowen, 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 Stock Market, Inc. (“Nasdaq”) to sell such Placement Shares
up to the amount specified in such Placement Notice, and otherwise in accordance with the terms of such Placement Notice. Cowen
will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set
forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is
sent, other than via auto-reply) no later than the opening of the Trading Day (as defined below) immediately following the Trading
Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the
volume-weighted average price of the Placement Shares sold, and the Net Proceeds (as defined below) payable to the Company. Subject
to the terms of a Placement Notice, Cowen may sell Placement Shares by any method permitted by law deemed to be an “at the
market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made through Nasdaq
or on any other existing trading market for the Common Stock. Notwithstanding the provisions of Section 6(ii), Cowen shall
not purchase Placement Shares for its own account as principal unless expressly authorized to do so by the Company in a Placement
Notice. The Company acknowledges and agrees that (i) there can be no assurance that Cowen will be successful in selling Placement
Shares, and (ii) Cowen 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 Cowen to use its commercially reasonable efforts consistent with its normal
trading and sales practices to sell such Placement Shares as required under this Section 3. For the purposes hereof,
“Trading Day” means any day on which the Company’s Common Stock is purchased and sold on the principal
market on which the Common Stock is listed or quoted. In the event the Company engages Cowen for a sale of Placement Shares that
would constitute a “block” within the meaning of Rule 10b-18(a)(5) under the Exchange Act (a “Block
Sale”), the Company will provide Cowen, at Xxxxx’x request and upon reasonable advance notice of no less than two
business days to the Company, on or prior to the Settlement Date (as defined below), the opinions of counsel, accountant’s
letter and officers’ certificates set forth in Section 8 hereof, each dated the Settlement Date, and such other documents
and information as Cowen shall reasonably request.
4. Suspension
of Sales.
(a) The
Company or Cowen 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 2, 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 2), suspend any sale of Placement Shares;
provided, however, that such suspension shall not affect or impair either party’s obligations with respect to any Placement
Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4
shall be effective against the other unless it is made to one of the individuals named on Schedule 2 hereto, as such schedule may
be amended from time to time.
(b) 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 Cowen 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) Cowen shall not be obligated to sell or offer to sell any Placement Shares.
(c) Notwithstanding
any other provision of this Agreement, during any period in which the Registration Statement is not effective under the Securities
Act, the Company shall promptly notify Cowen, the Company shall not request the sale of any Placement Shares, and Cowen shall not
be obligated to sell or offer to sell any Placement Shares.
5. Settlement.
(a) 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” and the first such settlement date, the “First
Delivery Date”). The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement
Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price received by Cowen at which such
Placement Shares were sold, after deduction for (i) Xxxxx’x commission, discount or other compensation for such sales
payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and payable by the Company
to Cowen hereunder pursuant to Section 7(g) (Expenses) hereof, and (iii) any transaction fees imposed
by any governmental or self-regulatory organization in respect of such sales.
(b) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting Xxxxx’x or its designee’s account (provided that Cowen 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 tradeable, transferable, registered shares in good deliverable form.
On each Settlement Date, Cowen will deliver the related Net Proceeds in same-day funds to an account designated by the Company
on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in
its obligation to deliver duly authorized Placement Shares on a Settlement Date through no fault of Cowen, the Company agrees that
in addition to and in no way limiting the rights and obligations set forth in Section 9(a) (Indemnification
and Contribution) hereto, it will (i) hold Cowen harmless against any loss, claim, damage, or reasonable documented expense
(including reasonable documented legal fees and expenses), as incurred, arising out of or in connection with such default by the
Company and (ii) pay to Cowen any commission, discount, or other compensation to which it would otherwise have been entitled
absent such default.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, Cowen that, unless such representation,
warranty or agreement specifies otherwise, as of the date of this Agreement, each Representation Date (as defined in Section 7(m)),
and as of each Applicable Time (as defined in Section 20(a)):
(a) Compliance
with Registration Requirements. As of each Applicable Time other than the date of this Agreement, the Registration Statement
and any Rule 462(b) Registration Statement have been declared effective by the Commission under the Securities Act. The
Company shall have complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement is in effect and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the
Company, contemplated or threatened by the Commission. The Company meets the requirements for use of Form S-3 under the Securities
Act. The sale of the Placement Shares hereunder meets the requirements of General Instruction I.B.1 of Form S-3.
(b) No
Misstatement or Omission. The Prospectus when filed complied and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration
Statement, the Prospectus and any post-effective amendments or supplements thereto, at the time it became effective or its date,
as applicable, complied and as of each Applicable Time, complied and will comply in all material respects with the Securities Act
and did not and, as of each Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended
or supplemented, as of its date, did not and, as of each Applicable Time, will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information
relating to Cowen furnished to the Company in writing by Cowen expressly for use therein. There are no contracts or other
documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been
described or filed as required.
(c) Offering
Materials Furnished to Cowen. The Company has delivered to Cowen one complete copy of the Registration Statement and a copy
of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Cowen has reasonably requested.
(d) Not
an Ineligible Issuer. The Company currently is not an “ineligible issuer,” as defined in Rule 405 of the rules and
regulation of the Commission. The Company agrees to notify Cowen promptly upon the Company becoming an “ineligible issuer.”
(e) Due
Incorporation. The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws
of the State of Delaware, has the corporate power and authority to own or lease its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse effect on the Company.
(f) The
Company does not have any “subsidiaries”, as defined in Regulation S-X, other than Orion Ophthalmology LLC and IVERIC
bio Gene Therapy LLC, and does not have any “significant subsidiaries” (as defined in Regulation S-X). Each of the
subsidiaries of the Company has been duly formed, is validly existing as a limited liability company in good standing under the
laws of the State of Delaware, has the limited liability company power and authority to own its property and to conduct its business
and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued
membership interests of the subsidiaries of the Company have been duly and validly authorized and issued, are fully paid and are
owned directly by the Company, free and clear of all liens, encumbrances, equities or claims.
(g) Distribution
of Offering Material by the Company. The Company has not distributed and will not distribute, prior to the completion of Xxxxx’x
distribution of the Placement Shares, any offering material in connection with the offering and sale of the Placement Shares other
than the Prospectus or the Registration Statement.
(h) The
Sales Agreement. This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, except as rights to indemnification and contribution hereunder may be limited
by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(i) Authorization
of the Placement Shares. The Placement Shares, when issued and delivered, will be duly authorized for issuance and sale pursuant
to this Agreement and, when issued and delivered by the Company against payment therefor pursuant to this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable, and the issuance of such Placement Shares will not be subject to any
preemptive or similar rights that have not been validly waived.
(j) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this
Agreement.
(k) No
Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information
is given in the Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected
to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects,
of the Company and its subsidiaries, taken as a whole (any such change is called a “Material Adverse Change”);
(ii) the Company has not incurred any material liability or obligation, indirect, direct or contingent, or have entered into
any material transactions not in the ordinary course of business; (iii) there has not been any material decrease in the capital
stock or any material increase in any short-term or long-term indebtedness of the Company; and (iv) and there has been no
dividend or distribution of any kind declared, paid or made by the Company other than ordinary and customary dividend , except
for dividends paid to the Company, or any repurchase or redemption by the Company of any class of capital stock other than purchases
of restricted common stock of the Company pursuant to contractual rights of the Company in connection with the termination of the
employment with the Company of the holders thereof.
(l) Independent
Accountants. Ernst & Young LLP, who has expressed its opinion with respect to the financial statements (which term
as used in this Agreement includes the related notes thereto) and supporting schedules filed with the Commission or incorporated
by reference as a part of the Registration Statement and included in the Prospectus, is an independent registered public accounting
firm as required by the Securities Act and the Exchange Act.
(m) Preparation
of the Financial Statements. The Company’s financial statements filed with the Commission as a part of or incorporated
within the Registration Statement and the Prospectus (collectively, the “Financial Statements”) have been prepared
in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated, except
that the unaudited Financial Statements may not contain all footnotes required by generally accepted accounting principles. The
Financial Statements are consistent with the books and records of the Company (which books and records are accurate and complete
in all material respects) and fairly present in all material respects the financial condition and operating results of the Company
as of the dates, and for the periods, indicated therein, subject in the case of the unaudited Financial Statements to normal year-end
audit adjustments. Except as set forth in the Financial Statements, the Company has no material liabilities or obligations, contingent
or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to December 31, 2020,
(ii) liabilities incurred subsequent to December 31, 2020 that are disclosed in the Company’s reports filed with
the Commission, (iii) obligations under contracts and commitments incurred in the ordinary course of business and (iv) liabilities
and obligations of a type or nature not required under generally accepted accounting principles to be reflected in the Financial
Statements, which, in all such cases, individually and in the aggregate would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole. The Company maintains and will continue to maintain a standard system of accounting established
and administered in accordance with generally accepted accounting principles. The financial data set forth or incorporated in the
Prospectus under the caption “Selected Financial Data” fairly present the information set forth therein on a basis
consistent with that of the audited financial statements contained, incorporated or deemed to be incorporated in the Registration
Statement. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(n) Capital
Stock Matters. The Common Stock conforms in all material respects to the description thereof contained in the Prospectus. All
of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable
and have been issued in compliance with federal and state securities laws. None of the outstanding shares of Common Stock were
issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights
to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company
other than those accurately described in all material respects in, or contemplated by, the Prospectus. The description of the Company’s
stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, set forth
in the Prospectus accurately and fairly presents in all material respects the information required to be shown with respect to
such plans, arrangements, options and rights.
(o) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. The Company and its subsidiaries are not in violation
or default (i) of any provisions of the Company’s certificate of incorporation or bylaws, (ii) of any judgment,
order, writ or decree of any court, governmental body or arbitrator, (iii) under any note, indenture or mortgage, or (iv) under
any lease, agreement, contract or purchase order 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, of any provision of federal or state statute, rule or regulation applicable to the
Company or any of its subsidiaries, in the case of clauses (iii) and (iv), the violation of which
would have a material adverse effect on the Company and its subsidiaries, taken as a whole. The execution and delivery by the Company
of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or its subsidiaries or any agreement or other instrument binding
upon the Company that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations
under this Agreement, except such as have already been obtained or made or as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Placement Shares.
(p) No
Material Actions or Proceedings. There are no legal or governmental proceedings pending or threatened to which the Company
is a party or to which any of the properties of the Company or its subsidiaries is subject (i) other than proceedings accurately
described in all material respects in the Prospectus and proceedings that would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated by the Prospectus or (ii) that are required to be described in the Registration
Statement or the Prospectus and are not so described; and there are no 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 Prospectus that
are not described or filed as required.
(q) Tax
Law Compliance. The Company and its subsidiaries have filed all federal, state, local and foreign tax returns required to be
filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually
or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes
required to be paid thereon (except for cases in which the failure to file or pay would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole or, except as currently being contested in good faith and for which reserves required
by U.S. GAAP have been created in the financial statements of the Company), and no tax deficiency has been determined adversely
to the Company which has had (nor does the Company have any notice or knowledge of any tax deficiency which could reasonably be
expected to be determined adversely to the Company and which would reasonably be expected to have) a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(r) Company
Not an “Investment Company”. The Company has been advised of the rules and requirements under the Investment
Company Act of 1940, as amended (the “Investment Company Act”). The Company is not, and immediately after receipt
of payment for the Common Stock will not be, an “investment company” within the meaning of Investment Company Act.
(s) Insurance.
Except as disclosed in the Prospectus, the Company and its subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; the
Company and its subsidiaries have not been refused any insurance coverage sought or applied for; and the Company does not have
any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(t) No
Price Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed
to or that would be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Placement Shares.
(u) Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any subsidiary
or any other person required to be described in the Prospectus which have not been described as required.
(v) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange
Act, and, when read together with the other information in the Prospectus, at the Settlement Dates, 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 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.
(w) No
Unlawful Contributions or Other Payments. Neither the Company nor its subsidiaries, nor, to the Company’s knowledge,
any of its affiliates, any director, officer, or employee of the Company, or any agent or representative of the Company, its subsidiaries
or of any of its affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization
or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government
official” (including any officer or employee of a government or government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or
party official or candidate for political office) to influence official action or secure an improper advantage; and the Company
and its subsidiaries, and, to the Company’s knowledge, its affiliates have conducted their businesses in compliance with
applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed
to promote and achieve compliance with such laws and with the representation and warranty contained herein and neither the Company
nor its subsidiaries will use the proceeds of the offering in furtherance of an offer, payment, promise to pay, authorization of
the payment of or giving of money, or anything else of value, in violation of any applicably anti-corruption law.
(x) Compliance
with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in
material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy
Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the
Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”),
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(y) Compliance
with OFAC.
(i) Neither
the Company nor its subsidiaries, nor, to the Company’s knowledge, any director, officer, or employee of the Company its
subsidiaries or any agent, affiliate or representative of the Company or its subsidiaries, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s
Treasury (“HMT”), the Swiss Secretariat of Economic Affairs (“SSEA”) or other relevant sanctions
authority (collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Crimea, Iran,
North Korea and Syria).
(ii) The
Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including Xxxxx)
(iii) For
the past five (5) years, the Company and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in,
and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing
or transaction is or was the subject of Sanctions.
(z) Company’s
Accounting System. The Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement is accurate. Except as described in the
Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness
in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(aa) 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 has carried out evaluations of the
effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(bb) Compliance
with Environmental Laws. The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(cc) Real
and Personal Property. The Company and its subsidiaries do not own any real property. The Company has good title to all personal
property owned by it which is material to the business of the Company or its subsidiaries, as the case may be, free and clear of
all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value
of such property and do not materially interfere with the use made and proposed to be made of such property by the Company or its
subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by the Company
or such subsidiaries under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially
interfere with the use made and proposed to be made of such property and buildings by the Company or its subsidiaries, in each
case except as described in the Prospectus.
(dd) Intellectual
Property. Except as described in the Prospectus, the Company and its subsidiaries own or possess, or can acquire on reasonable
terms, adequate rights to all patents, patent rights, inventions, trademarks, service marks, trade names, domain names, goodwill
associated with the foregoing, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) and other intellectual property rights, including registrations
and applications for registration thereof (collectively, “Intellectual Property”) necessary for the conduct
of the business of the Company and its subsidiaries in all material respects as currently conducted and as proposed to be conducted,
and, to the knowledge of the Company, the conduct of the business of the Company has not conflicted with, infringed, misappropriated
or otherwise violated, and will not conflict with, infringe, misappropriate or otherwise violate, any Intellectual Property of
any third party in any material respect. Except as described in the Prospectus, the Company has not received any written notice
of, and is not otherwise aware of, any pending or threatened claim of infringement, misappropriation or other violation of any
Intellectual Property of any third party or any written notice challenging the validity, scope or enforceability of their respective
Intellectual Property or rights therein, in each case which, individually or in the aggregate, would reasonably be expected to
have a material adverse effect on the Company and its subsidiaries, taken as a whole. The Company is not aware of any specific
facts or combination of facts that would support a finding that any of the material issued or granted patents owned by or licensed
to the Company is invalid or unenforceable and, to the knowledge of the Company, all such issued or granted patents are valid and
enforceable.
(ee) Listing.
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act. The Common Stock is registered pursuant to Section 12(b) or Section 12(g) of the Exchange
Act and is listed on the Nasdaq, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or delisting the Common Stock from Nasdaq, nor has the Company received
any notification that the Commission or Nasdaq is contemplating terminating such registration or listing.
(ff) Brokers.
Except for Xxxxx, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s
fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(gg) No
Outstanding Loans or Other Indebtedness. Except as described in the Prospectus, there are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for
the benefit of any of the officers or directors of the Company or any of the members of any of them.
(hh) No
Reliance. The Company has not relied upon Xxxxx or legal counsel for Xxxxx for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(ii) Xxxxx
Purchases. The Company acknowledges and agrees that Xxxxx has informed the Company that Xxxxx may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell shares of Common Stock for its own account while this Agreement
is in effect.
(jj) Regulatory
Compliance. The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct its business, and the Company has not received any notice of proceedings relating
to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company, except as described in the
Prospectus. Except as described in the Prospectus the Company and its subsidiaries (i) are, and at all times have been, in
compliance with all statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging,
processing, use, distribution, storage, import, export or disposal of any product manufactured or distributed by the Company or
its subsidiaries (“Applicable Regulatory Laws”), except where such noncompliance would not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole;
and (ii) has not received any U.S. Food and Drug Administration (“FDA”) Form 483, written notice of
adverse finding, warning letter, untitled letter or other correspondence or written notice from any court or arbitrator or governmental
or regulatory authority alleging or asserting non-compliance with (x) any Applicable Regulatory Laws or (y) any licenses,
exemptions, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any
such Applicable Regulatory Laws.
(kk) Clinical
Trials. (i) The clinical trials and pre-clinical research and development activities conducted by or, to the knowledge
of the Company, on behalf of or sponsored by the Company, or in which the Company has participated, that are described in the Prospectus,
or the results of which are referred to in the Prospectus, as applicable, were, and if still pending are, being conducted in all
material respects in accordance with standard medical and scientific research standards and procedures for products or product
candidates comparable to those being developed by the Company and all applicable statutes and all applicable rules and regulations
of the FDA and comparable regulatory agencies outside of the United States to which they are subject, including the European Medicines
Agency (collectively, the “Regulatory Authorities”), and current Good Clinical Practices and Good Laboratory
Practices, as applicable; (ii) the descriptions in the Registration Statement and the Prospectus of the results of such trials
and pre-clinical research and development activities are accurate and complete descriptions in all material respects and fairly
present the data derived therefrom; (iii) the Company has no knowledge of any Company-sponsored trials and research and development
activities not described in the Prospectus, the results of which are inconsistent with or call into question the results described
or referred to in the Registration Statement and the Prospectus; (iv) the Company has operated at all times and is currently
in compliance in all material respects with all applicable statutes, rules and regulations of the Regulatory Authorities;
and (v) except as described in the Prospectus, the Company has not received any written notices, correspondence or other communications
from the Regulatory Authorities or any other governmental agency requiring or threatening the termination, material modification
or suspension of any clinical trials or pre-clinical research and development activities that are described in the Registration
Statement and the Prospectus or the results of which are referred to in the Prospectus, other than ordinary course communications
with respect to modifications in connection with the design and implementation of such trials, and, to the Company’s knowledge,
there are no reasonable grounds for the same.
(ll) Regulatory
Filings. The Company has not failed to file with the Regulatory Authorities any required filing, declaration, listing, registration,
report or submission with respect to the Company’s product candidates that are described or referred to in the Prospectus;
all such filings, declarations, listings, registrations, reports or submissions were in material compliance with applicable laws
when filed; and no deficiencies regarding compliance with applicable law have been asserted by any applicable regulatory authority
with respect to any such filings, declarations, listings, registrations, reports or submissions.
(mm) Labor
Disputes. No material labor dispute with the employees of the Company or its subsidiaries exists, except as described in the
Prospectus, or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(nn) Cybersecurity;
Data Protection. Each of the Company and its subsidiaries has complied and is presently in compliance with all internal privacy
policies, contractual obligations, applicable laws, statutes, judgments, orders, rules and regulations of any court or arbitrator
or other governmental or regulatory authority and any other legal obligations, in each case, relating to the collection, use, transfer,
import, export, storage, protection, disposal and disclosure by the Company of personal, personally identifiable, sensitive, confidential
or regulated data (“Data Security Obligations”, and such data, “Data”) except where such
noncompliance would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole; (ii) the Company has not received any notification of or complaint regarding and is
unaware of any other facts that, individually or in the aggregate, would reasonably indicate non-compliance with any Data Security
Obligation; and (iii) there is no action, suit or proceeding by or before any court or governmental agency, authority or body
pending or, to the Company’s knowledge, threatened alleging non-compliance with any Data Security Obligation.
(oo) Privacy.
Each of the Company and its subsidiaries has taken all reasonable technical and organizational measures necessary to protect the
information technology systems and Data used in connection with the operation of the Company’s and its subsidiaries’
businesses, except where such noncompliance would not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole. Without limiting the foregoing, the Company and its subsidiaries
have used reasonable efforts to establish and maintain, and has established, maintained, implemented, and complied with, reasonable
information technology, information security, cyber security and data protection controls, policies and procedures, including oversight,
access controls, encryption, technological and physical safeguards and business continuity/disaster recovery and security plans
that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement,
misappropriation or modification, or other compromise or misuse of or relating to any information technology system or Data used
in connection with the operation of the Company’s and its subsidiaries’ businesses (“Breach”). There
has been no such Breach that is material to the Company and its subsidiaries, and the Company and its subsidiaries have not been
notified of and has no knowledge of any event or condition that would reasonably be expected to result in, any such Breach.
Any certificate signed by an officer of the Company and delivered
to Xxxxx or to counsel for Xxxxx shall be deemed to be a representation and warranty by the Company to Xxxxx as to the matters
set forth therein.
The
Company acknowledges that Xxxxx and, for purposes of the opinions to be delivered pursuant to Section 7 hereof,
counsel to the Company and counsel to Xxxxx, will rely upon the accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
7. Covenants
of the Company. The Company covenants and agrees with Xxxxx that:
(a) Registration
Statement Amendments. Prior to the initial sale of any Placement Shares, the Company shall file a final Prospectus Supplement
pursuant to Rule 424(b) relating to the Placement Shares. 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 Xxxxx under the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify Xxxxx
promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference
or amendments that do not name Xxxxx and do not relate to the transactions contemplated by this Agreement, 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 other
than requests that do not relate to the transactions contemplated by this Agreement, (ii) the Company will prepare and file
with the Commission, promptly upon Xxxxx’x request, any amendments or supplements to the Registration Statement or Prospectus
that, in Xxxxx’x reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares
by Xxxxx (provided, however, that the failure of Xxxxx to make such request shall not relieve the Company of any
obligation or liability hereunder, or affect Xxxxx’x right to rely on the representations and warranties made by the Company
in this Agreement and provided, further, that the only remedy Xxxxx shall have with respect to the failure by the Company to make
such filing (other than Xxxxx’x rights under Section 9 hereof) will 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, other than documents incorporated by reference, relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted to Xxxxx within a reasonable period of time before
the filing and Xxxxx has not reasonably objected thereto (provided, however, that the failure of Xxxxx to make such objection shall
not relieve the Company of any obligation or liability hereunder, or affect Xxxxx’x right to rely on the representations
and warranties made by the Company in this Agreement and provided, further, that the only remedy Xxxxx shall have with respect
to the failure by the Company to make such filing (other than Xxxxx’x rights under Section 9 hereof) will
be to cease making sales under this Agreement until such amendment or supplement is filed) and the Company will furnish to Xxxxx
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; (iv) the Company will cause each amendment or supplement
to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Securities Act; and (v) prior to the termination of this Agreement, the
Company will notify Xxxxx if at any time the Registration Statement shall no longer be effective as a result of the passage of
time pursuant to Rule 415 under the Securities Act or otherwise.
(b) Notice
of Commission Stop Orders. The Company will advise Xxxxx, 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.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to
be delivered by Xxxxx under the Securities Act with respect to a pending sale of the Placement Shares, (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates (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 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 Xxxxx 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 the filing of any amendment or supplement, if in the judgment of the Company, it is in the best interest of the
Company.
(d) Listing
of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered
by Xxxxx under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable
efforts to cause the Placement Shares to be listed on Nasdaq and to qualify the Placement Shares for sale under the securities
laws of such jurisdictions as Xxxxx reasonably designates and to continue such qualifications in effect so long as required for
the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection
therewith to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to Xxxxx 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 Xxxxx may from time to time reasonably request and, at Xxxxx’x 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 Xxxxx to the extent such document is available on
XXXXX.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as reasonably practicable, but in any
event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month
period that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance
with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of
its obligations hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of
the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto,
(ii) the preparation, issuance and delivery of the Placement Shares, (iii) the qualification of the Placement Shares
under securities laws in accordance with the provisions of Section 7(d) of this Agreement, including filing
fees (provided, however, that any fees or disbursements of counsel for Xxxxx in connection therewith shall be paid by Xxxxx except
as set forth in (vii) below), (iv) the printing and delivery to Xxxxx of copies of the Prospectus and any amendments
or supplements thereto, and of this Agreement, (v) the fees and expenses incurred in connection with the listing or qualification
of the Placement Shares for trading on Nasdaq, (vi) the filing fees and expenses, if any, of the Commission, (vii) the
filing fees and associated legal expenses of Xxxxx’x outside counsel for filings with the FINRA Corporate Financing Department,
such legal expense reimbursement not to exceed $10,000 and, (viii) the reasonable fees and disbursements of Xxxxx’x
counsel in an amount not to exceed $50,000.
(h) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i) Notice
of Other Sales. During the pendency of any Placement Notice given hereunder, and for 5 (five) trading days following the termination
of any Placement Notice given hereunder, the Company shall provide Xxxxx notice as promptly as reasonably practicable before it
offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other
than Placement Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for
Common Stock, warrants or any rights to purchase or acquire Common Stock; provided, that such notice shall not be required in connection
with the (i) issuance, grant or sale of Common Stock, options to purchase shares of Common Stock or other equity awards or
Common Stock issuable upon the exercise of options or other equity awards pursuant to any stock option, stock incentive or stock
purchase plan or arrangement described in the Prospectus (and the issuance by the Company of shares of Common Stock upon the exercise
or vesting thereof), (ii) the issuance of securities in connection with an acquisition, merger or sale or purchase of assets
or (iii) the issuance or sale of Common Stock pursuant to any dividend reinvestment plan that the Company may adopt from time
to time provided the implementation of such is disclosed to Xxxxx in advance, (iv) the issuance of any shares of common stock
issuable upon the exchange, conversion or redemption of securities or the exercise of warrants, options or other rights in effect
or outstanding or (v) the issuance of Common Stock, securities convertible into or exercisable for Common Stock or other securities
offered and sold in a privately negotiated transaction to vendors, customers, strategic partners or other investors conducted or
in connection with a transaction that includes a commercial relationship (including joint ventures, marketing or distribution arrangements,
collaboration agreements or intellectual property license agreements) in a manner so as not to be integrated with the offering
of the Placement Shares hereby or (vi) the issuance by the Company of shares of Common Stock upon the Company’s achievement
of milestones under existing licensing and/or acquisition agreements, in each case as described in the Prospectus. Notwithstanding
the foregoing provisions, nothing herein shall be construed to restrict the Company’s ability, or require the Company to
provide notice to Xxxxx, to file a registration statement under the Securities Act.
(j) Change
of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement
Notice or sell Placement Shares, advise Xxxxx 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 provided
to Xxxxx pursuant to this Agreement.
(k) Due
Diligence Cooperation. During the term of this Agreement, the Company will cooperate with any reasonable due diligence review
conducted by Xxxxx or its agents 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 Xxxxx may reasonably request.
(l) Required
Filings Relating to Placement of Placement Shares. 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 (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Shares sold through Xxxxx, the Net Proceeds to the Company
and the compensation payable by the Company to Xxxxx 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.
(m) Representation
Dates; Certificate. On or prior to the First Delivery Date and each time the Company (i) amends or supplements the Registration
Statement or the Prospectus relating to the Placement Shares (other than a prospectus supplement filed in accordance with Section 7(l) of
this Agreement) by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of document(s) by
reference to the Registration Statement or the Prospectus relating to the Placement Shares; (ii) files an annual report on
Form 10-K under the Exchange Act; (iii) files its quarterly reports on Form 10-Q under the Exchange Act; or (iv) files
a report on Form 8-K containing amended financial information (other than any information “furnished” pursuant
to Items 2.02 or 7.01 of Form 8-K) under the Exchange Act (each date of filing of one or more of the documents referred to
in clauses (i) through (iv) shall be a “Representation Date”); the Company
shall furnish Xxxxx with a certificate, in the form attached hereto as Exhibit 7(m) within three (3) Trading Days
of any Representation Date if requested by Xxxxx (but in the case of clause (iv), only if Xxxxx reasonably determinates
that the information contained in such Form 8-K is material to a holder of Common Stock). The requirement to provide a certificate
under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no Placement
Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided,
however, that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K.
Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when
the Company relied on such waiver and did not provide Xxxxx with a certificate under this Section 7(m), then before
the Company delivers the Placement Notice or Xxxxx sells any Placement Shares, the Company shall provide Xxxxx with a certificate,
in the form attached hereto as Exhibit 7(m), dated the date of the Placement Notice.
(n) Legal
Opinion. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver
is applicable, the Company shall cause (i) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP (“Company’s Outside Counsel”),
or other counsel satisfactory to Xxxxx, to furnish Xxxxx (A) a written opinion and (B) a written negative assurance statement,
each in form and substance satisfactory to Xxxxx (ii) Xxxx Partners, primary intellectual property counsel for the Company
(“Company’s Primary Intellectual Property Counsel”) or other counsel satisfactory to Xxxxx, to furnish
Xxxxx a written opinion and (iii) Xxxxxx LLP, intellectual property counsel for the Company and primary intellectual property
counsel for IVERIC bio Gene Therapy LLC (“Company’s Intellectual Property Counsel” and together with Company’s
Primary Intellectual Property Counsel “Company’s Intellectual Property Counsels”) or other counsel satisfactory
to Xxxxx, to furnish Xxxxx a written opinion, dated the date that the opinion is required to be delivered, substantially similar
to the forms attached hereto as Exhibit 7(n)(i), Exhibit 7(n)(ii), and Exhibit 7(n)(iii), respectively, modified,
as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, the Company
shall be required to furnish no more than one opinion from each of Company’s Outside Counsel and Company’s Internal
Counsel per fiscal quarter in connection with the Company’s filing of a Quarterly Report on Form 10-Q (to the extent
no waiver is then applicable) (or an Annual Report on Form 10-K, as the case may be), and no more than one opinion from Company’s
Intellectual Property Counsels per fiscal year in connection with the Company’s filing of an Annual Report on Form 10-K;
provided however, that in lieu of such opinions and negative assurance statement for subsequent Representation Dates, counsel may
furnish Xxxxx with a letter (a “Reliance Letter”) to the effect that Xxxxx may rely on a prior opinion and a
prior negative assurance statement delivered under this Section 7(n) to the same extent as if it were dated
the date of such letter (except that statements in such prior opinion and prior negative assurance statement shall be deemed to
relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(o) Comfort
Letter. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver
is applicable, the Company shall cause its independent accountants to furnish Xxxxx a letter (the “Comfort Letter”),
dated the date that the Comfort Letter is delivered, in form and substance satisfactory to Xxxxx, (i) confirming that they
are an independent registered public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating,
as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to Xxxxx 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; provided that the Company
shall be required to furnish to Xxxxx no more than one Comfort Letter hereunder per fiscal quarter in connection with the Company’s
filing of a Quarterly Report on Form 10-Q (to the extent no waiver is then applicable) (or an Annual Report on Form 10-K,
as the case may be).
(p) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that
constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase the Common Stock to be
issued and sold pursuant to this Agreement in violation of Regulation M, or pay anyone any compensation for soliciting purchases
of the Placement Shares other than Xxxxx; provided, however, that the Company may bid for and purchase shares of its common stock
in accordance with Rule 10b-18 under the Exchange Act.
(q) Insurance.
The Company shall maintain, or cause to be maintained, insurance in such amounts and covering such risks as is reasonable and customary
for the business for which it is engaged.
(r) Compliance
with Laws. The Company and each of its subsidiaries shall maintain, or cause to be maintained, all material environmental permits,
licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in
the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or cause their businesses to be conducted,
in substantial compliance with such permits, licenses and authorizations and with Environmental Laws except where the failure to
maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to result in a Material
Adverse Change.
(s) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that
are not considered an investment company.
(t) Securities
Act and Exchange Act. The Company will use its reasonable best efforts to comply with all requirements imposed upon it by the
Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or
dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(u) No
Offer to Sell. Other than the Prospectus or a free writing prospectus (as defined in Rule 405 under the Securities Act)
approved in advance by the Company and Xxxxx in its capacity as principal or agent hereunder, neither Xxxxx nor the Company (including
its agents and representatives, other than Xxxxx 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 Common Stock hereunder.
(v) Xxxxxxxx-Xxxxx
Act. The Company will use its reasonable best efforts to comply with all effective applicable provisions of the Xxxxxxxx-Xxxxx
Act.
(w) Secretary’s
Certificate. On or prior to the First Delivery Date, Xxxxx shall have received a certificate, signed on behalf of the Company
by its corporate Secretary, in form and substance satisfactory to Xxxxx and its counsel.
8. Conditions
to Xxxxx’x Obligations. The obligations of Xxxxx 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 Xxxxx of a due diligence review satisfactory to Xxxxx in its reasonable judgment,
and to the continuing satisfaction (or waiver by Xxxxx in its sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall be effective and shall be available for (i) all sales of Placement
Shares issued pursuant to all prior Placement Notices and (ii) the 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 or any
of its subsidiaries 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 such documents so
that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in
the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) No
Misstatement or Material Omission. Xxxxx 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 Xxxxx’x reasonable opinion is material,
or omits to state a fact that in Xxxxx’x 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, on a consolidated basis, in the authorized capital stock of the Company or any
Material Adverse Change or any development that could reasonably be expected to result in a Material Adverse Change, or any 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 Xxxxx (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) Company
Counsel Legal Opinion. Xxxxx shall have received the opinions of Company’s Outside Counsel, Company’s Intellectual
Property Counsels and Company’s Internal Counsel required to be delivered pursuant to Section 7(n) on
or before the date on which such delivery of such opinion is required pursuant to Section 7(n).
(f) Xxxxx
Counsel Legal Opinion. Xxxxx shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for Xxxxx, such opinion or
opinions, and 10b-5 statement on or before the date on which the delivery of the Company Counsel legal opinion is required pursuant
to Section 7(n), with respect to such matters as Xxxxx may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for enabling them to pass upon such matters.
(g) Comfort
Letter. Xxxxx shall have received the Comfort Letter required to be delivered pursuant to Section 7(o) on
or before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(h) Representation
Certificate. Xxxxx shall have received the certificate required to be delivered pursuant to Section 7(m) on
or before the date on which delivery of such certificate is required pursuant to Section 7(m).
(i) Secretary’s
Certificate. On or prior to the First Delivery Date, Xxxxx shall have received the Secretary’s Certificate required to
be delivered pursuant to Section 7(w).
(j) No
Suspension. Trading in the Common Stock shall not have been suspended on Nasdaq.
(k) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m),
the Company shall have furnished to Xxxxx such appropriate further information, certificates and documents as Xxxxx may have reasonably
requested. All such opinions, certificates, letters and other documents shall have been in compliance with the provisions hereof.
The Company will furnish Xxxxx with such conformed copies of such opinions, certificates, letters and other documents as Xxxxx
shall have reasonably requested.
(l) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior
to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
(m) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on Nasdaq, subject only to notice of
issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on Nasdaq at, or prior to,
the issuance of any Placement Notice.
(n) No
Termination Event. There shall not have occurred any event that would permit Xxxxx to terminate this Agreement pursuant to
Section 11(a).
9. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless Xxxxx, the directors, officers, partners, employees and
agents of Xxxxx and each person, if any, who (i) controls Xxxxx within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, or (ii) is controlled by or is under common control with Xxxxx (a “Xxxxx
Affiliate”) from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited
to, any and all reasonable investigative, legal and other expenses incurred in connection with, and any and all amounts paid in
settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted),
as and when incurred, to which Xxxxx, or any such person, may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or any amendment or supplement to the Registration Statement
or the Prospectus or in any free writing prospectus or in any application or other document executed by or on behalf of the Company
in connection with this Agreement or based on written information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Placement Shares under the securities laws thereof or filed with the Commission or (y) the omission
or alleged omission to state in any such document a material fact required to be stated in it or necessary to make the statements
in it not misleading; provided, however, that this indemnity agreement shall not apply to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Placement Shares pursuant to this Agreement and is caused directly or indirectly
by an untrue statement or omission made in reliance upon and in conformity with the Agent’s Information. This indemnity agreement
will be in addition to any liability that the Company might otherwise have.
(b) Xxxxx
Indemnification. Xxxxx agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the
Company (a “Company Affiliate”) against any and all loss, liability, claim, damage and expense described in
the indemnity contained in Section 9(a), as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with the Agent’s Information.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 9 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 9, notify each such indemnifying party in writing 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 9
and (ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 9
unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified
party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable
costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel
to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each
of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party
or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm 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 9 (whether or not
any indemnified party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such claim, action or proceeding.
(d) 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 9 is applicable in accordance with its terms but for any reason is held to be unavailable
from the Company or Xxxxx, the Company and Xxxxx will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons
other than Cowen, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who
signed the Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company and
Cowen may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the
one hand and Cowen on the other. The relative benefits received by the Company on the one hand and Cowen 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 Cowen 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 Cowen, on the other, 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 Cowen, 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 Cowen agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) 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 9(d) shall
be deemed to include, for the purpose of this Section 9(d), 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 9(c) hereof.
Notwithstanding the foregoing provisions of this Section 9(d), Cowen 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 9(d), any person who controls
a party to this Agreement within the meaning of the Securities Act, and any officers, directors, partners, employees or agents
of Cowen, will have the same rights to contribution as that party, and each officer and director 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 9(d), 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 9(d) 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 9(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 9(c) hereof.
10. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9 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 (a) any investigation made by or on behalf of Cowen, any controlling persons,
or the Company (or any of their respective officers, directors or controlling persons), (b) delivery and acceptance of the
Placement Shares and payment therefor or (c) any termination of this Agreement.
11. Termination.
(a) Cowen
shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any Material
Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred that,
in the reasonable judgment of Cowen, may materially impair the ability of Cowen to sell the Placement Shares hereunder, (ii) the
Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided,
however, in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion,
or letter required under Sections 7(m), 7(n), or 7(o), Xxxxx’x right to terminate shall
not arise unless such failure to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such
delivery was required; or (iii) any other condition of Xxxxx’x obligations hereunder is not fulfilled, or (iv), any
suspension or limitation of trading in the Placement Shares or in securities generally on Nasdaq shall have occurred. Any such
termination shall be without liability of any party to any other party except that the provisions of Section 7(g) (Expenses),
Section 9 (Indemnification and Contribution), Section 10 (Representations and Agreements
to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17
(Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If Cowen elects to
terminate this Agreement as provided in this Section 11(a), Cowen shall provide the required notice as specified
in Section 12 (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 7(g), Section 9, Section 10,
Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(c) Cowen
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 7(g), Section 9, Section 10, Section 16
and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance
and sale of all of the Placement Shares through Cowen on the terms and subject to the conditions set forth herein; provided that
the provisions of Section 7(g), Section 9, Section 10, Section 16
and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(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 7(g), Section 9, Section 10,
Section 16 and Section 17 shall remain in full force and effect. Upon termination of this Agreement,
the Company shall not have any liability to Cowen for any discount, commission or other compensation with respect to any Placement
Shares not otherwise sold by Cowen under this Agreement, except with respect to reimbursement of expenses actually incurred pursuant
to Section 7(g).
(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 Cowen 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.
12. 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 in this Agreement, and if sent to Cowen, shall be delivered to Cowen
at Xxxxx and Company, LLC, via electronic mail to Xxxxxxx.Xxxxxx@xxxxx.xxx, Attention: General Counsel; or if sent to the Company,
shall be delivered to Iveric Bio, Inc. via electronic mail to xxxxxxx@xxxxxxxxx.xxx, Attention: General Counsel; with a copy
to Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, Attention: Xxxxx X. Xxxxxxx via electronic mail to xxxxx.xxxxxxx@xxxxxxxxxx.xxx.
Each party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of
a new address for such purpose. All communications hereunder, except as herein otherwise specifically provided, shall be in writing
and shall be mailed, delivered by hand or reputable overnight courier or delivered by facsimile transmission (with printed confirmation
of receipt) and confirmed, or by electronic transmission via PDF, and shall be deemed given (i) when so delivered
or faxed or transmitted on or before 4:30 p.m., New York City time, on a Business Day (as defined below), or, if such day is not
a Business Day on the next succeeding Business Day, (ii) when couriered, on the next Business Day after timely delivery to
a nationally recognized overnight courier and (iii) when mailed, 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 Nasdaq and commercial banks in the City of New York are open for business.
13. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Cowen and their respective successors
and the affiliates, controlling persons, officers and directors referred to in Section 9 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 Cowen may assign its rights and obligations hereunder to an affiliate of Cowen without
obtaining the Company’s consent.
14. 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 Common Stock.
15. Entire
Agreement; Amendment; Severability. 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 Cowen. 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.
16. Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the
State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any
dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted
by law.
17. Waiver
of Jury Trial. The Company and Cowen each hereby irrevocably waives any right it may have to a trial by jury in respect of
any claim based upon or arising out of this Agreement or any transaction contemplated hereby.
18. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Cowen
has been retained solely to act as sales agent in connection with the sale of the Common Stock and that no fiduciary, advisory
or agency relationship between the Company and Cowen has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether Cowen has advised or is advising the Company on other matters;
(b) the
Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) the
Company has been advised that Cowen and its affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that Cowen has no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship; and
(d) the
Company waives, to the fullest extent permitted by law, any claims it may have against Cowen, for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that Cowen shall have no liability (whether direct or indirect) to the Company in respect of
such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
partners, employees or creditors of the Company.
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 electronic or facsimile
transmission. The words “execution,” “signed,” “signature,” and words of like import in this Agreement
or in any other certificate, agreement or document related to this Agreement or the offering and sale of the Placement Shares shall include
images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”,
“tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use
of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent,
communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed
signature or use of a paperbased record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law,
including, without limitation, any state law based on the Uniform Electronic Transactions Act.
20. Definitions.
As used in this Agreement, the following terms have the meanings set forth below:
(a) “Applicable
Time” means the date of this Agreement, each Representation Date, the date on which a Placement Notice is given, and
any date on which Placement Shares are sold hereunder.
(b) “Agent’s
Information” means, solely the following information in the Prospectus: the third sentence in the eighth paragraph under
the caption “Plan of Distribution” in the Prospectus.
[Remainder of Page Intentionally
Blank]
If the foregoing correctly sets forth the
understanding between the Company and Cowen, please so indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and Cowen.
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Very truly yours,
XXXXX AND COMPANY, LLC |
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By: |
/s/ Xxxxxx Xxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
Head of Healthcare Investment Banking |
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ACCEPTED as of the date first-above written:
IVERIC BIO, INC. |
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By: |
/s/ Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Chief Financial Officer |
Signature
Page – Sales Agreement
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From: |
[ ] |
Cc: |
[ ] |
To: |
[ ] |
Subject: |
Cowen at the Market Offering—Placement Notice |
Ladies & Gentlemen:
Pursuant to the terms and subject to the
conditions contained in the Sales Agreement between Iveric Bio, Inc. (the “Company”), and Xxxxx and Company,
LLC (“Cowen”) dated March 4, 2021 (the “Agreement”), I hereby request on behalf
of the Company that Cowen sell up to [ ] shares of the Company’s common stock, par value $0.001 per share, at a minimum market
price of $[ ] per share. Sales should begin on the date of this Notice and shall continue until [DATE] [all shares are sold] [the
aggregate sales price of the shares reaches $ ].
SCHEDULE 2
Company
| · | Xxxxx X. Xxxxxxxxxx, Chief Executive Officer (xxxxx.xxxxxxxxxx@xxxxxxxxx.xxx) |
| · | Xxxxx X. Xxxxxxx, Chief Financial Officer (xxxxx.xxxxxxx@xxxxxxxxx.xxx) |
Cowen
| · | Xxxxxx Xxxxxxxx, Managing Director (Xxxxxx.xxxxxxxx@xxxxx.xxx) |
| · | Xxxxx X’Xxxxxx, Director (xxxxx.xxxxxxx@xxxxx.xxx) |
SCHEDULE 3
Compensation
Cowen shall be paid compensation equal to 3.0% of the gross
proceeds from the sales of Common Stock pursuant to the terms of this Agreement.
Exhibit 7(n)(i)
Form of Opinion of Counsel for the
Company
[Attached.]
Exhibit 7(n)(ii)
Form of Opinion of Primary Intellectual
Property Counsel for the Company
[Attached.]
Exhibit 7(n)(iii)
Form of Opinion of Intellectual
Property Counsel for the Company
[Attached.]
Exhibit 7(m)
OFFICER’S CERTIFICATE
The
undersigned, the duly qualified and elected , of Iveric Bio, Inc., a Delaware corporation (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales
Agreement dated March 4, 2021 (the “Sales Agreement”) between the Company and Xxxxx and Company, LLC, 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 (A) to the extent such representations and warranties are subject to qualifications and exceptions
contained therein relating to materiality or Material Adverse Change, 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, and (B) to the extent such representations and
warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof
as if made 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;
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.
Date: