Exhibit 1.1
Execution Version
Elevation Oncology, Inc.
(a Delaware corporation)
17,810,000 Shares of Common Stock
Pre-funded Warrants to Purchase 4,440,000 Shares
of Common Stock
and
Common Warrants to Purchase 22,250,000 Shares of
Common Stock
UNDERWRITING AGREEMENT
June 8, 2023
SVB Securities LLC
Xxxxx and Company, LLC
as Representatives of the several Underwriters
c/o SVB Securities LLC
00 Xxxxx Xxxxxx, 40th Floor
Boston, MA 02109
c/o Cowen and Company, LLC
000 Xxxxxxxxx Xxxxxx, 00xx Floor
New York, NY 10022
Ladies and Gentlemen:
Elevation Oncology, Inc.,
a Delaware corporation (the “Company”), confirms its agreement with SVB Securities LLC (“SVB Securities”),
Xxxxx and Company, LLC (“XX Xxxxx”) and each of the other Underwriters named in Schedule A hereto (collectively,
the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10
hereof), for which SVB Securities and XX Xxxxx are acting as representatives (in such capacity, the “Representatives”),
with respect to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective
numbers of shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”) set forth in Schedule A
hereto (the “Shares”), (ii) pre-funded warrants of the Company (the “Pre-Funded Warrants”) in the
form set forth in Exhibit B hereto, to purchase shares of Common Stock, and (iii) common warrants in the form set forth
in Exhibit C hereto, to purchase shares of Common Stock (the “Common Warrants” and, together with Pre-Funded
Warrants, the “Warrants”). The Shares, Pre-Funded Warrants and Common Warrants
to be purchased by the Underwriters are herein called, collectively, the “Securities” and the shares of Common Stock
issuable upon exercise of the Warrants are herein called the “Warrant Shares.” Each full Pre-Funded Warrant
is exercisable for one share of Common Stock at an exercise price of $0.001 per whole share of Common Stock. Each full Common Warrant
is exercisable for one share of Common Stock at an exercise price of $2.25 per whole share of Common Stock. Each Share is being sold together
with one Common Warrant, and each Pre-Funded Warrant is being sold together with one Common Warrant. To the extent there are no additional
underwriters listed on Schedule A, the term “Representatives” as used in this Underwriting Agreement (the “Agreement”)
shall mean you, as Underwriters, and the term “Underwriters” shall mean either the singular or the plural, as the context
requires.
The Company understands that
the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement
has been executed and delivered.
The Company has filed with
the Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3 (No. 333-265979),
covering the public offering and sale of certain securities, including the Securities, under the Securities Act of 1933, as amended (the
“1933 Act”) and the rules and regulations of the Commission promulgated thereunder (the “1933 Act Regulations”),
which shelf registration statement was declared effective on August 4, 2022. Such registration statement, as of any time, means such
registration statement as amended by any post-effective amendments thereto at such time, including the exhibits and any schedules thereto
at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3
under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B under the 1933 Act
Regulations (“Rule 430B”), and is referred to herein as the “Registration Statement;” provided, however,
that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective
amendments thereto as of the time of the first contract of sale for the Securities, which time shall be considered the “new effective
date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B,
including the exhibits and schedules thereto as of such time, the documents incorporated or deemed incorporated by reference therein at
such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time
pursuant to Rule 430B. Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations in connection
with the offer and sale of the Securities is herein called the “Rule 462(b) Registration Statement” and,
after such filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. Each
preliminary prospectus used in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as a “preliminary
prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare and file a final prospectus relating
to the Securities in accordance with the provisions of Rule 424(b) under the 1933 Act Regulations (“Rule 424(b)”).
The final prospectus, in the form first furnished or made available to the Underwriters for use in connection with the offering of the
Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, are collectively referred to herein as the “Prospectus.” For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (or any
successor system) (“XXXXX”).
As used in this Agreement:
“Applicable
Time” means 6:30 P.M., New York City time, on June 8, 2023 or such other time as agreed by the Company and the Representatives.
“General Disclosure
Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most recent preliminary
prospectus (including any documents incorporated therein by reference) that is distributed to investors prior to the Applicable Time and
the information included on Schedule B-1 hereto, all considered together.
“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations
(“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405
of the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with
the Commission by the Company, (ii) a “road show for an offering that is a written communication” within the meaning
of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission
pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the
final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained
in the Company’s records pursuant to Rule 433(g).
“Issuer General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors
(other than a “bona fide electronic road show,” as defined in Rule 433), as evidenced by its being specified in
Schedule B-2 hereto.
“Issuer Limited
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of
the 1933 Act.
“Written Testing-the-Waters
Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under
the 1933 Act.
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included” or “stated”
(or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include
all such financial statements and schedules and other information incorporated or deemed incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the execution and delivery of this Agreement; and
all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “1934 Act”), incorporated or deemed to be incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the case may be, at or after the execution and delivery of this
Agreement.
SECTION 1. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time
and the Closing Time, and agrees with each Underwriter, as follows:
(i) Registration
Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any amendment thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued by the Commission under the 1933 Act, no order preventing or suspending
the use of any preliminary prospectus or the Prospectus has been issued by the Commission and no proceedings for any of those purposes
have been instituted by the Commission or are pending or, to the Company’s knowledge, contemplated by the Commission. The Company
has complied with each request (if any) from the Commission for additional information.
Each of the Registration
Statement and any post-effective amendment thereto, at the time of its effectiveness and at each deemed effective date with respect to
the Underwriters pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, complied in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at
the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations. Each preliminary prospectus delivered to the Underwriters for use in connection with the offering and the Prospectus was
or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
The documents incorporated
or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or 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 1934
Act and the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”).
The Registration
Statement, any preliminary prospectus and the Prospectus, and the filing of the Registration Statement, any preliminary prospectus and
the Prospectus with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been
duly executed pursuant to such authorization.
(ii) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time or at the Closing Time, contained,
contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. As of the Applicable Time, none of (A) the General Disclosure
Package, (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package,
nor (C) any individual Written Testing-the-Waters Communication, when considered together with the General Disclosure Package, included,
includes or will include an untrue statement of a material fact or omitted, omits or will 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. Neither the Prospectus nor
any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission
pursuant to Rule 424(b) or at the Closing Time, included, includes or will include an untrue statement of a material fact or
omitted, omits or will 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 documents incorporated or deemed to be incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated
by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement,
the General Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto),
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto, including any prospectus wrapper) made in reliance
upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for
use therein. For purposes of this Agreement, the only information so furnished shall be the information in the first paragraph under the
caption “Underwriting—Commission and Discounts,” the second sentence of the first paragraph and the first sentence of
the sixth paragraph under the caption “Underwriting—Price Stabilization, Short Positions and Penalty Bids” in each case
contained in the Prospectus (collectively, the “Underwriter Information”).
(iii) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed
to be a part thereof that has not been superseded or modified. No filing of any “road show” (as defined in Rule 433(h))
is required in connection with the offering of the Securities. Any Issuer Free Writing Prospectus that the Company is required to file
pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements
of the 1933 Act and the 1933 Act Regulations. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the 1933 Act or that was prepared by or behalf of or used or referred to by the Company complies
or will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Except for the Issuer Free
Writing Prospectuses, if any, identified in Schedule B-2 hereto, and electronic road shows, if any, each furnished to the Representatives
before first use, the Company has not prepared, used or referred to, and will not, without the prior consent of the Representatives, prepare,
use or refer to, any issuer free writing prospectus.
(iv) Testing-the-Waters
Materials. The Company (A) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications
with the consent of the Representatives with entities that it has reasonable basis to believe are qualified institutional buyers within
the meaning of Rule 144A under the 1933 Act or institutions that are accredited investors within the meaning of Rule 501 under
the 1933 Act and (B) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The
Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications
authorized by the Company. The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule
B-3 hereto.
(v) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendments thereto, at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,”
as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an ineligible issuer.
(vi) Emerging
Growth Company Status. From the time of the initial filing of the Registration Statement with the Commission (or, if earlier, the
first date on which the Company engaged directly or through any individual or entity authorized to act on its behalf in any Testing-the-Waters
Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of
the 1933 Act (an “Emerging Growth Company”).
(vii) Independent
Accountants. CohnReznick LLP, which has certified certain financial statements of the Company, is an independent registered public
accounting firm with respect to the Company within the applicable rules and regulations adopted by the Commission and the Public
Company Accounting Oversight Board (United States) and as required by the 1933 Act.
(viii) Financial
Statements; Non-GAAP Financial Measures. The financial statements (including the related notes thereto) of the Company included or
incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related
schedules and notes, comply as to form in all material respects with Regulation S-X under the 1933 Act and present fairly, in all material
respects, the financial position of the Company as of the dates indicated and the results of its operations, its stockholders’ equity
and its cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting
principles in the United States (“GAAP”) applied on a consistent basis throughout the periods covered thereby, except
in the case of unaudited interim financial statements, which are subject to normal year-end adjustments and do not contain certain footnotes
as permitted by the applicable rules of the Commission, and any supporting schedules included in the Registration Statement present
fairly, in all material respects, the information required to be stated therein; and the other financial information included in the Registration
Statement, the General Disclosure Package and the Prospectus has been derived from the accounting records of the Company and presents
fairly, in all material respects, the information shown thereby; all disclosures included in the Registration Statement, the General Disclosure
Package and the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations
of the Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1934 Act, to the extent applicable. The
interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus 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.
(ix) Compliance
with the Xxxxxxxx-Xxxxx Act of 2002. There is and has been no failure on the part of the Company or, to the Company’s knowledge,
any of the Company’s directors or officers, in their capacities as such, to comply with any applicable provision of the Xxxxxxxx-Xxxxx
Act of 2002, as amended and the rules and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
with which the Company is required to comply, including Section 402 related to loans.
(x) No
Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package or the Prospectus, (i) there has not been any change in the capital
stock (other than the issuance of shares of Common Stock upon exercise of stock options and warrants described as outstanding in, and
the grant of options and awards under the Company’s existing stock-based compensation plans (the “Company Stock Plans”)
described in, and the issuance of any stock upon the conversion of Company securities described in the Registration Statement, the General
Disclosure Package and the Prospectus, and the repurchase or retirement of shares of capital stock pursuant to agreements providing for
an option to repurchase or a right of first refusal on behalf of the Company pursuant to the Company’s repurchase rights), any change
in short-term debt or long-term debt of the Company, or any dividend or distribution of any kind declared, set aside for payment, paid
or made by the Company on any class of capital stock, or any material adverse change, or any development that would reasonably be expected
to result in a material adverse change, in or affecting the business, properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company, whether or not arising in the ordinary course of business (a “Material
Adverse Effect”); (ii) the Company has not entered into any transaction or agreement (whether or not in the ordinary course
of business) that is material to the Company or incurred any liability or obligation, direct or contingent, that is material to the Company;
(iii) the Company has not sustained any loss or interference with its business that is material to the Company and that is either
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus; and (iv) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital stock.
(xi) Good
Standing of the Company. The Company has been duly organized and is validly existing and in good standing under the laws of its jurisdiction
of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property
or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and
to conduct the business in which it is engaged, except where the failure to be so qualified or in good standing or have such power or
authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Other than as disclosed
in Exhibit 21.1 of the Company’s most recent Annual Report on Form 10-K, the Company does not have any direct or indirect
subsidiaries and does not own or control, directly or indirectly, any corporation, association or other entity.
(xii) Capitalization.
The Company has an authorized capitalization as set forth in the Registration Statement, the General Disclosure Package and the Prospectus
under the headings “Capitalization” and “Description of Capital Stock”; all the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights that have not been duly waived or satisfied; except as described in or expressly contemplated by the Registration
Statement, the General Disclosure Package and the Prospectus, there are no outstanding rights (including, without limitation, pre-emptive
rights that have not been duly waived or satisfied), warrants or options to acquire, or instruments convertible into or exchangeable for,
any shares of capital stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement
of any kind relating to the issuance of any capital stock of the Company, any such convertible or exchangeable securities or any such
rights, warrants or options; the capital stock of the Company conforms in all material respects to the description thereof contained in
the Registration Statement, the General Disclosure Package and the Prospectus.
(xiii) Stock
Options. Except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, with respect to the stock options (the “Stock Options”) granted pursuant to the Company Stock Plans,
(i) each Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue
Code of 1986, as amended (the “Code”), so qualifies, (ii) each grant of a Stock Option was duly authorized no
later than the date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by
all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and
authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and, to the
knowledge of the Company (other than with respect to the execution and delivery by the Company) the award agreement governing such grant
(if any) was duly executed and delivered by each party thereto, (iii) each such grant was made, in all material respects, in accordance
with the terms of the Company Stock Plans, the 1934 Act and all other applicable laws and regulatory rules or requirements, including
the rules of Nasdaq Global Select Market and any other exchange on which Company securities are traded, and (iv) each such grant
was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company. Each Company
Stock Plan is accurately described in all material respects in the Registration Statement, the General Disclosure Package and the Prospectus.
The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Stock Options prior
to, or otherwise coordinating the grant of Stock Options with, the release or other public announcement of material information regarding
the Company or its results of operations or prospects.
(xiv) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(xv) Authorization
and Description of Securities. The Shares to be issued and sold by the Company hereunder have been duly authorized by the Company
and, when issued and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and nonassessable
and will conform in all material respects to the descriptions thereof in the Registration Statement, the General Disclosure Package and
the Prospectus; and the issuance of the Shares is not subject to any preemptive or similar rights that have not been duly waived. The
Warrants have been duly authorized by the Company and, when executed and delivered by the Company, will be valid and binding agreements
of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof 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. The Warrant Shares have been duly authorized and validly reserved for issuance upon exercise of the Warrants in
a number sufficient to meet the current exercise requirements. The Warrant Shares, when issued and delivered upon exercise of the Warrants
in accordance therewith (and provided that a sufficient number of authorized but unissued shares of Common Stock are available), will
be validly issued, fully paid and nonassessable and will conform to the descriptions thereof in the Registration Statement, the General
Disclosure Package and the Prospectus. The issuance of the Warrant Shares is not subject to any preemptive rights or other similar rights
of any securityholder of the Company.
(xvi) Registration
Rights. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, to the extent that any
person has the right to require the Company to register any securities for sale under the 1934 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Shares, those rights have been waived as of the date of this Agreement with
respect to such filing or issuance and sale of Shares pursuant to this Agreement.
(xvii) Absence
of Violations, Defaults and Conflicts. The Company is not (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any property or asset of
the Company is subject (collectively, “Agreements and Instruments”); or (iii) in violation of any law or statute
or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, having jurisdiction
over the Company or any of its properties, assets or operations (each, a “Governmental Entity”), except, in the case
of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the Warrants, the consummation
of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including
the issuance and sale of the Securities and the issuance of the Warrant Shares and the use of the proceeds from the sale of the Securities
as described therein under the caption “Use of Proceeds”) and the compliance by the Company with its obligations hereunder
and under the Warrants have been duly authorized by all necessary corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company pursuant
to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances
that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter, by-laws or similar organizational document of the Company or any law, statute, rule, regulation, judgment,
order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or condition
which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company.
(xviii) [Reserved]
(xix) Absence
of Labor Dispute. No labor disturbance by or dispute with employees of the Company exists or, to the knowledge of the Company, is
contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the employees
of any of its principal suppliers, contractors or customers, except as would not reasonably be expected to have a Material Adverse Effect.
The Company has not received any notice of cancellation or termination with respect to any collective bargaining agreement to which it
is a party.
(xx) Absence
of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity (including,
without limitation, any action, suit proceeding, inquiry or investigation before or brought by the U.S. Food and Drug Administration (the
“FDA”) or any comparable regulatory authority in any jurisdiction now pending or, to the knowledge of the Company,
threatened, against or affecting the Company, which would reasonably be expected to result in a Material Adverse Effect, or which would
reasonably be expected to materially and adversely affect their respective properties or assets or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its obligations hereunder; and the aggregate of all pending legal
or governmental proceedings to which the Company is a party or of which any of its properties or assets is the subject which are not described
in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to
the business, would not reasonably be expected to result in a Material Adverse Effect.
(xxi) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(xxii) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree
of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement and
the Warrants, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of
the Nasdaq Stock Market LLC, state securities laws or the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xxiii) Possession
of Licenses and Permits. The Company possesses, and is in compliance with the terms of, all licenses, sub-licenses, certificates,
registrations, clearances, permits and other authorizations (collectively, “Governmental Licenses”) issued by, and
has made all declarations and filings with, the appropriate Governmental Licenses that are necessary for the ownership or lease of its
properties or the conduct of its business as described in each of the Registration Statement, the Disclosure Package and the Prospectus,
except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and except as described in each of the Registration Statement, the Disclosure Package and the Prospectus, the Company
has not received written notice of any revocation, suspension, or modification of any such Governmental Licenses or has any reason to
believe that any such Governmental Licenses will not be renewed in the ordinary course, except where such revocation, modification or
nonrenewal would not reasonably be expected to have a Material Adverse Effect. The Company has fulfilled and performed all of its respective
obligations in all material respects with respect to all Governmental Licenses and no event has occurred which allows, or after notice
or lapse of time would allow, revocation, suspension, or termination thereof or results in any other impairment of the rights of the holder,
except where such revocation, suspension,, modification or nonrenewal would not reasonably be expected to have a Material Adverse Effect.
To the Company’s knowledge, no party granting any such Governmental Licenses has taken, or is contemplating taking, any action to
limit, suspend, modify, or revoke the same in any material respect. The Company has filed, obtained, maintained or submitted all material
reports, documents, forms, notices, applications, records, claims, supplements or amendments as required and that all such reports, documents,
forms, notices, applications, records, claims, supplements or amendments were materially complete and correct on the date filed (or were
corrected or supplemented by a subsequent submission) as required for maintenance of its Governmental Licenses or for continued compliance
with Applicable Laws.
(xxiv) Title
to Property. The Company has good and marketable title to, or has valid rights to lease or otherwise use, all items of real and personal
property that are material to the business of the Company, in each case free and clear of all liens, encumbrances, claims and defects
and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such property
by the Company or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(xxv) Title
to Intellectual Property. To the Company’s knowledge, except as described in the Registration Statement, the General Disclosure
Package and the Prospectus, the Company owns or possesses valid and enforceable licensed rights to use, all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service mark registrations, trade dress, designs, data, database rights, Internet
domain names, copyrights, works of authorship, licenses, proprietary information and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures), and all other material intellectual property and
proprietary rights, including registrations and applications for registration thereof, that is disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus as owned by or licensed to the Company (collectively, “Intellectual Property”)
necessary for the conduct of its business as currently conducted or as proposed to be conducted. To the Company’s knowledge, the
conduct of its business does not infringe, misappropriate or otherwise violate any Intellectual Property of any third party. The Intellectual
Property of the Company has not been adjudged by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part,
and the Company is unaware of any facts which would form a reasonable basis for any such adjudication. The Company has not received any
written notice of any material claim of infringement, misappropriation or conflict with any intellectual property rights of another, and
the Company is unaware of any facts which would form a reasonable basis for any such notice or claim. The Company has not received any
written notice of any material claim, or is otherwise aware, of any facts or circumstances which would render any Intellectual Property
of the Company invalid or inadequate to protect the interest of the Company. To the Company’s knowledge: (i) there are no third
parties who have material rights to any Intellectual Property, including no liens, security interests, or other encumbrances, except for
customary reversionary rights of third-party licensors with respect to Intellectual Property; and (ii) there is no material infringement
by third parties of any Intellectual Property. Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, there is no material pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others:
(A) challenging the Company’s rights in or to any Intellectual Property, and the Company is unaware of any facts which would
form a reasonable basis for any such action, suit, proceeding, or claim; (B) challenging the validity, enforceability or scope of
any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding
or claim; or (C) asserting that the Company infringes, misappropriates, or otherwise violates, or would, upon the commercialization
of any product or service described in the Registration Statement, the General Disclosure Package and the Prospectus as under development,
infringe, misappropriate, or otherwise violate, any intellectual property rights of others, and the Company is unaware of any facts which
would form a reasonable basis for any such action, suit, proceeding or claim. The Company has complied with the terms of each material
agreement pursuant to which Intellectual Property has been licensed to the Company, and all such agreements are in full force and effect.
To the Company’s knowledge there is no prior art that may render any material patent within the Intellectual Property invalid or
that may render any patent application within the Intellectual Property unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office (“USPTO”). To the Company’s knowledge, there is no material patent or pending published patent
application, in the U.S. or other jurisdiction, which, in the case of a patent, contains claims, or in the case of a pending published
patent application contains patentable claims, that dominate or may dominate any of the Company’s Intellectual Property described
in the preliminary prospectus and Prospectus as being owned by or licensed to the Company or that interferes with the issued or pending
claims of any of the Company’s Intellectual Property. To the Company’s knowledge, the patents included in the Intellectual
Property are subsisting and have not lapsed and the patent applications in the Intellectual Property are subsisting and, except as would
not reasonably be expected to have a Material Adverse Event, have not been abandoned. To the Company’s knowledge, there are no defects
in any of the material patents or patent applications included in the Intellectual Property. The Company has taken all reasonable steps
to protect, maintain and safeguard its Intellectual Property, including the execution of appropriate nondisclosure, confidentiality agreements
and invention assignment agreements and invention assignments with its employees, and to the Company’s knowledge, no employee of
the Company is in or has been in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement,
non-competition agreement, non-solicitation agreement, nondisclosure agreement, or any restrictive covenant to or with a former employer
where the basis of such violation relates to such employee’s employment with the Company. To the Company’s knowledge, for
the period of time the Company has been involved in patent prosecution of the Intellectual Property, the duty of candor and good faith
as required by the USPTO and similar requirements in other jurisdictions have been complied with by the Company with respect to Company
owned Intellectual Property. To the Company’s knowledge, none of the Company owned Intellectual Property or technology (including
information technology and outsourced arrangements) employed by the Company has been obtained or is being used by the Company in violation
of any contractual obligation binding on the Company or any of its officers, directors or employees or otherwise in violation of the rights
of any persons. The product candidates described in the Registration Statement, the General Disclosure Package and the Prospectus as under
development by the Company fall within the scope of the claims of one or more patents or patent applications owned by, or exclusively
licensed to, the Company.
(xxvi) FDA
Compliance. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the Company: (A) are
and at all times have been in material compliance with all statutes, rules or regulations of the FDA and other comparable Governmental
Entities applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling,
promotion, sale, offer for sale, storage, import, export or disposal of any product under development, manufactured or distributed by
or on behalf of the Company (“Applicable Laws”); (B) have not received any Form FDA 483, notice of adverse
finding, warning letter, untitled letter or other written correspondence from the FDA or any other Governmental Entity alleging or asserting
material noncompliance with any Applicable Laws or the terms of any licenses, certificates, approvals, registrations, clearances, exemptions,
authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”),
except in each case as would not, individually or in the aggregate have a Material Adverse Effect; (C) possess all material Authorizations
and such Authorizations are valid and in full force and effect and the Company is not in material violation of any term of any such Authorizations;
(D) have not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or
other action from the FDA or any other Governmental Entity or third party alleging that any product operation, research program, or activity
is in material violation of any Applicable Laws or Authorizations and have no knowledge that the FDA or any other Governmental Entity
or third party is threatening any such claim, litigation, arbitration, action, suit, investigation or proceeding, except in each case
as would not, individually or in the aggregate have a Material Adverse Effect; (E) has not received written notice that the FDA or
any other Governmental Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any material Authorizations
and has no knowledge that the FDA or any other Governmental Entity is threatening such action, except in each case as would not, individually
or in the aggregate have a Material Adverse Effect; and (F) has filed, obtained, maintained or submitted all material reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations
and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially
complete and correct on the date filed (or were corrected or supplemented by a subsequent submission).
(xxvii) Compliance
with Health Care Laws. The Company, its directors, officers, and to the knowledge of the Company, its employees, independent contractors,
and agents are, and at all times have been, in compliance with all applicable Health Care Laws, except to the extent that any non-compliance
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. For purposes of this Agreement,
“Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act (42 U.S.C. §§
201 et seq.), and the regulations promulgated thereunder; (ii) all applicable federal, state, local and foreign health care fraud
and abuse laws, including, without limitation, the U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the U.S. Civil False
Claims Act (31 U.S.C. Section 3729 et seq.), the criminal False Statements Law (42 U.S.C. Section 1320a-7b(a)), 18 U.S.C. Sections
286, 287, 1035, 1347, and 1349 the health care fraud criminal provisions under HIPAA (42 U.S.C. Section 1320d et seq.), the civil
monetary penalties law (42 U.S.C. Section 1320a-7a), the exclusions law (42 U.S.C. Section 1320a-7), the Physician Payments
Sunshine Act (42 U.S.C. Section 1320-7h), laws governing government funded or sponsored healthcare programs; (iii) HIPAA, as
amended by the Health Information Technology for Economic and Clinical Health Act, (42 U.S.C. Section 17921 et seq.); (iv) the
Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010; (v) licensure,
quality, safety and accreditation requirements under applicable federal, state, local or foreign laws or regulatory bodies; and (vi) all
other local, state, federal, national, supranational and foreign laws, relating to the regulation of the Company, and (vii) the directives
and regulations promulgated pursuant to such statutes and any state or non-U.S. counterpart thereof. The Company and its officers, directors,
and to the Company’s knowledge, its employees or agents have not engaged in activities which are, as applicable, cause for liability
under a Health Care Law that, individually or in the aggregate, would be reasonably expected to have a Material Adverse Effect. The Company
has not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action
from any court or arbitrator or governmental or regulatory authority or third party alleging that any product operation or activity is
in violation of any Health Care Laws nor, to the Company’s knowledge, is any such claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action threatened, except in each case as would not, individually or in the aggregate, have a Material
Adverse Effect. The Company has filed, maintained or submitted all material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Health Care Laws, and all such reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed (or were corrected
or supplemented by a subsequent submission). Neither the Company nor its employees, officers, directors, independent contractors, or,
to the Company’s knowledge, agents is a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement
orders, or similar agreements with or imposed by any governmental or regulatory authority. Additionally, neither the Company nor its employees,
officers, directors, or, to the Company’s knowledge, agents has been excluded, suspended or debarred from participation in any U.S.
federal health care program or, to the Company’s knowledge, human clinical research, or is subject to a governmental inquiry, investigation,
proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion, or engaged in
any conduct that would reasonably be expected to result in debarment, suspension, or exclusion.
(xxviii) Environmental
Laws. (i) The Company (x) is in compliance with all, and has not violated any, applicable federal, state, local and foreign
laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements
relating to pollution or the protection of human health or safety, the environment, natural resources, hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, “Environmental Laws”); (y) has received and is in compliance
with all, and has not violated any, permits, licenses, certificates or other authorizations or approvals required of it under any Environmental
Laws to conduct its business; and (z) has not received notice of any actual or potential liability or obligation under or relating
to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants, and has no knowledge of any event or condition that would
reasonably be expected to result in any such notice; (ii) there are no costs or liabilities associated with Environmental Laws of
or relating to the Company, except in the case of each of (i) and (ii) above, for any such matter as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in each of the Registration
Statement, the Disclosure Package and the Prospectus, (x) there is no proceeding that is pending, or that is known to be contemplated,
against the Company under any Environmental Laws in which a governmental entity is also a party, other than such proceeding regarding
which it is reasonably believed no monetary sanctions of $300,000 or more will be imposed, (y) the Company is not aware of any facts
or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous
or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a Material Adverse Effect, and (z) the
Company does not anticipate material capital expenditures relating to any Environmental Laws.
(xxix) Hazardous
Materials. There has been no storage, generation, transportation, use, handling, treatment, Release or, to the knowledge of the Company,
threat of Release of Hazardous Materials (as defined below) by, relating to or caused by the Company (or, to the knowledge of the Company,
any other entity (including any predecessor) for whose acts or omissions the Company is or could reasonably be expected to be liable)
at, on, under or from any property or facility now or, to the knowledge of the Company, previously owned, operated or leased by the Company,
or at, on, under or from any other property or facility, in violation of any Environmental Laws or in a manner or amount or to a location
that could reasonably be expected to result in any liability under any Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Hazardous Materials”
means any material, chemical, substance ,waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount,
including petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing
materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to liability under any
Environmental Law. “Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through the environment, or in, into from or
through any building.
(xxx) Accounting
Controls and Disclosure Controls. The Company maintains systems of “internal control over financial reporting” (as defined
in Rule 13a-15(f) of the 1934 Act) that comply with the applicable requirements of the 1934 Act and have been designed by, or
under the supervision of, its principal executive and principal financial officers, or persons performing similar functions to provide
reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization;
(B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization;
(D) 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 (E) the interactive data in eXtensible Business Reporting Language incorporated by reference
in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material
respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described in
the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited
fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or
not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially adversely
affected, or is reasonably likely to materially adversely affect, the Company’s internal control over financial reporting. The Company
maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the 1934
Act) that complies with the applicable requirements of the 1934 Act and that are designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the
time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions
regarding disclosure.
(xxxi) Nonclinical
Tests and Clinical Trials. The nonclinical studies, tests and clinical trials conducted by or, to the Company’s knowledge, by
an licensor of the Company or on behalf of the Company, that are described in the Registration Statement, the General Disclosure Package
and the Prospectus, as applicable, and are intended to be submitted to FDA or other Government Entities, were and, if still ongoing, are
being conducted in all material respects in accordance with experimental protocols, procedures and controls pursuant to accepted professional
scientific standards and all Governmental Licenses, Authorizations and Applicable Laws, including, without limitation, the Federal Food,
Drug and Cosmetic Act and the rules and regulations promulgated thereunder and any applicable rules and regulations of the jurisdiction
in which such trials and studies are being conducted; the descriptions of the results of such studies, tests and trials contained in the
Registration Statement, the General Disclosure Package and the Prospectus are, to the Company’s knowledge, accurate and complete
in all material respects and fairly present the data derived from such studies, tests and trials, except in each case as would not, individually
or in the aggregate have a Material Adverse Effect; except to the extent disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, the Company is not aware of any studies, tests or trials, the results of which the Company believes reasonably
call into question the study, test, or trial results described or referred to in the Registration Statement, the General Disclosure Package
and the Prospectus when viewed in the context in which such results are described and the clinical state of development; and, except to
the extent disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, the Company has not received any
written notices or written correspondence from the FDA or any Governmental Entity requiring the termination or suspension of any nonclinical
studies, tests or clinical trials conducted by or on behalf of the Company, other than ordinary course communications with respect to
modifications in connection with the design and implementation of such trials, copies of which communications have been made available
to you.
(xxxii) Payment
of Taxes. The Company has paid all federal, state, local and foreign taxes and filed all tax returns required to be paid or filed
through the date hereof (taking into account any valid extensions relating thereto), except where the failure to file would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as otherwise disclosed in each of the Registration
Statement, the General Disclosure Package and the Prospectus, or as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, and there is no tax deficiency that has been, or could reasonably be expected to be, asserted against
the Company or its properties or assets.
(xxxiii) Insurance.
The Company has insurance as would be reasonable and customary for companies like the Company covering its properties, operations, personnel
and business, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are
adequate to protect the Company and its business; and the Company (i) has not received written notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance
or (ii) 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 at reasonable cost from similar insurers as may be necessary to continue its business.
(xxxiv) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Securities and the Warrant Shares as herein contemplated
and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus
will not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended.
(xxxv) Absence
of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly
or indirectly, any action which is designed, or would be reasonably expected, to cause or result in, or which constitutes, the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities and the Warrant Shares
or to result in a violation of Regulation M under the 1934 Act.
(xxxvi) Foreign
Corrupt Practices Act. Neither the Company nor its directors or its officers, and, to the knowledge of the Company, any employee of
the Company or any agent, affiliate or other person associated with or acting on behalf of the Company has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made, or
taken an act in furtherance of an offer, payment, promise to pay, or authorization or approval of any direct or indirect unlawful payment,
benefit or provision of anything of value to any foreign or domestic government or regulatory official or employee, including of any 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; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act
2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested
or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence
payment, kickback or other unlawful or improper payment or benefit. The Company has instituted, maintains and enforces, and will continue
to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption
laws.
(xxxvii) Money
Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable
money laundering statutes of all jurisdictions where the Company conducts business, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines applicable to such entities, issued, administered or enforced by any governmental
agency of all jurisdictions where the Company conducts business (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
with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxxviii) OFAC.
Neither the Company, its directors and its officers, nor, to the knowledge of the Company its employees, or any agent, affiliate or other
person associated with or acting on behalf of the Company is currently the subject or the target of any sanctions administered or enforced
by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or
the U.S. Department of State and including, without limitation, the designation as a “specially designated national”
or “blocked person”), the United Nations Security Council, the European Union, His Majesty’s Treasury or other
relevant sanctions authority (collectively, “Sanctions”), nor is the Company located, organized or resident in a country
or territory that is the subject or target of Sanctions, including, without limitation, the so-called Donetsk People’s Republic,
the so-called Luhansk People’s Republic and Cuba, Iran, North Korea, Syria, and the Crimea, so-called Donetsk People’s
Republic, and so-called Luhansk People’s Republic regions in Ukraine (each, a “Sanctioned Country”); and the
Company will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities
of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to
fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation
by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
Since the Company’s inception, the Company has not knowingly engaged in and is not now knowingly engaged in any dealings or transactions
with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned
Country.
(xxxix) Lending
Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company
(i) does not have any material lending or other relationship with any banking or lending affiliate of any Underwriter and (ii) does
not intend to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate of any Underwriter.
(xl) Statistical
and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package
or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate
and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(xli) Maintenance
of Rating. The Company has no debt securities or preferred stock that is rated by any “nationally recognized statistical rating
organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act).
(xlii) Privacy
and Data Protection. The Company’s information technology assets and equipment, including, without limitation, those owned,
licensed or otherwise used (excluding any public networks), such as its data communications lines, computers, systems, networks, hardware,
servers, software, websites, cloud resources, applications, and databases (collectively, “IT Systems”) are adequate
for, and operate and perform in all material respects as required in connection with the operation of the business of the Company as currently
conducted and as proposed to be conducted as described in the Registration Statement, the Disclosure Package and the Prospectus. The IT
Systems are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants, in each case
that may reasonably be expected to have a Material Adverse Effect. The Company has at all times implemented and maintained commercially
reasonable controls, policies, procedures, and safeguards (including contractual obligations on third party service providers) to maintain
and protect their material confidential information and the integrity, availability, privacy, continuous operation, redundancy and security
of all essential IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data) (“Company
Data”) used in connection with its business. There have been no material breaches, violations, outages, compromises, or unlawful
or unauthorized acquisitions of, disclosures of, uses of or accesses to the same, except for those that have been remedied without material
cost or liability or the duty to notify any other person, nor any such actual or reasonably suspected incidents under internal review
or investigations relating to the same. The Company has no knowledge of any event, circumstances, or condition that would reasonably be
expected to result in such breach, violation, outage, compromise, or unlawful or unauthorized acquisition of, disclosure of, use of or
access to the Company Data. The Company is, and since its inception has been, in material compliance with all (i) applicable laws,
industry standards, statutes, judgments, orders, rules and regulations of any court, arbitrator, governmental or regulatory authority;
(ii) internal policies, and (iii) contractual obligations, each (i) -(iii) relating to the privacy and security of
IT Systems and Company Data and to the protection of such IT Systems and Company Data from unauthorized use, access, misappropriation
or modification.
(xliii) No
Broker Fees. Except as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s
fee or other like payment in connection with the offering of the Securities contemplated hereby.
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale
and Delivery to Underwriters; Closing.
(a) Offered
Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees
to purchase from the Company, (i) at the combined price per Share and accompanying Common Warrant set forth in Schedule A
(the “Share Purchase Price”), that number of Shares and accompanying Common Warrants set forth in Schedule A
opposite the name of such Underwriter, and (ii) at the combined price per Pre-Funded Warrant and accompanying Common Warrant set
forth in Schedule A, the number of Pre-Funded Warrants and accompanying Common Warrants set forth in Schedule A opposite
the name of such Underwriter, plus any additional number of Shares, Pre-Funded Warrants and accompanying Common Warrants which such Underwriter
may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among
the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.
(b) Payment.
Payment of the purchase price for, and delivery of certificates or security entitlements for, the Shares and Warrants shall be made at
the offices of Mintz, Levin, Cohn, Xxxxxx, Glovsky and Xxxxx, P.C., One Financial Center, Boston, MA 02111, or at such other place as
shall be agreed upon by the Representatives and the Company, at 10:00 A.M. (New York City time) on the second (third, if the
pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by
the Representatives and the Company (such time and date of payment and delivery being herein called “Closing Time”).
Delivery of the Shares at the Closing Time shall be made through the facilities of The Depository Trust Company unless the Representatives
shall otherwise instruct. The Warrants shall be delivered to the purchasers of the Warrants in definitive form, registered in such names
and in such denominations as the purchasers of the Warrants shall request in writing not later than the Closing Time. The Warrants will
be made available for inspection by the Representatives on the business day prior to the Closing Time. The Company and the Representatives
shall instruct purchasers of the Pre-Funded Warrants and accompanying Warrants in the public offering to make payment for the Pre-Funded
Warrants and accompanying Warrants on the Closing Time to the Company by wire transfer in immediately available funds to the account specified
by the Company at a purchase price of $2.2499 per Pre-Funded Warrant and accompanying Common Warrant, in lieu of payment by the Underwriters
for such Pre-Funded Warrants and accompanying Common Warrants, and the Company shall deliver such Pre-Funded Warrants and accompanying
Common Warrants to such purchasers on the Closing Time in definitive form against such payment, in lieu of the Company’s obligation
to deliver such Pre-Funded Warrants and accompanying Common Warrants to the Underwriters; provided that the Company shall promptly (but
in no event later than the Closing Time) pay $ 0.135 per such Pre-Funded Warrant and accompanying Common Warrant to the Underwriters by
wire transfer in immediately available funds to the account specified by the Representatives. In the event that the purchasers of the
Pre-Funded Warrants and accompanying Common Warrants in the public offering fail to make payment to the Company for all or part of the
Pre-Funded Warrants and accompanying Common Warrants on the Closing Time, the Representatives may elect, by written notice to the Company,
to receive shares of Common Stock and accompanying Common Warrants at the Share Purchase Price in lieu of all or a portion of such Pre-Funded
Warrants and accompanying Common Warrants to be delivered to the Underwriters under this Agreement.
The Company shall physically
deliver, or cause to be delivered, the Warrants to the purchasers thereof, in accordance with the Representatives’ instructions,
at the Closing Time.
Payment shall be made to the
Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates or security entitlements for the Securities to be purchased by them. It
is understood that each Underwriter has authorized the Representatives, for their accounts, to accept delivery of, receipt for, and make
payment of the purchase price for, the Shares and the Warrants, which it has agreed to purchase. Each of SVB Securities and XX Xxxxx,
individually and not as Representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for
the Shares and the Warrants to be purchased by any Underwriter whose funds have not been received by the Closing Time but such payment
shall not relieve such Underwriter from its obligations hereunder.
SECTION 3. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements
of Rule 430B, and will promptly notify the Representatives, and confirm the notice in writing, (i) when any post-effective amendment
to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of
the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus (including any document incorporated by reference therein) or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement
and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering
of the Securities. The Company will effect all filings required under Rule 424(b), in the manner and within the time period required
by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will use reasonable efforts to prevent the issuance of any stop
order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof as soon as reasonably practicable.
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration
Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but
for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the
1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order
that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package
or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement
the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly (A) give the Representatives notice of such event, (B) prepare any amendment
or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish
the Representatives with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement;
provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Underwriters
shall object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may
reasonably request. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations
within 48 hours prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing
from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object.
(c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without
charge, copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed incorporated by reference therein) and copies of all consents and certificates
of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally
filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery
of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for
the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Blue
Sky Qualifications. The Company will use commercially reasonable efforts, in cooperation with the Underwriters, to qualify the Securities
for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives
may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided,
however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(f) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders
as soon as practicable an earning statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(g) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in all material respects in the
manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(h) Listing.
The Company will use commercially reasonable efforts to effect and maintain the listing of the Common Stock (including the Shares and
the Warrant Shares) on the Nasdaq Global Select Market.
(i) Restriction
on Sale of Securities. During a period of 90 days from the date of the Prospectus (the “Restricted Period”), the
Company will not, without the prior written consent of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common
Stock or file any registration statement under the 1933 Act with respect to any of the foregoing, (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise or (iii) publicly announce an intention to effect any such swap, agreement
or other transaction described in clauses (i) and (ii). The foregoing sentence shall not apply to (A) the Securities to be sold
hereunder (including the issuance of the Warrants and Warrant Shares); (B) any shares of Common Stock issued by the Company upon
the exercise of an option or warrant or the conversion of a convertible security outstanding on the date hereof and referred to in the
Registration Statement, the General Disclosure Package and the Prospectus; (C) any shares of Common Stock issued or options to purchase
Common Stock or other awards granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement,
the General Disclosure Package and the Prospectus; (D) any shares of Common Stock issued pursuant to any existing non-employee director
stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus;
(E) beginning after 30 days from the date of the Prospectus, the filing by the Company of a prospectus supplement relating to the
sales agreement by and between the Company and XX Xxxxx, dated July 1, 2022 (the “Sales Agreement”); provided
that no sale of shares of Common Stock pursuant to the Sales Agreement will occur during the Restricted Period; (F) the entry by
the Company into a trading plan that complies with Rule 10b5-1 under the 1934 Act; provided that there is no sale of shares of Common
Stock during the Restricted Period and provided that the establishment of such a trading plan is not required to be reported in any public
report or filing with the Commission, or otherwise and the Company does not otherwise voluntarily effect any public filing or report regarding
the establishment of such plan, (G) the filing by the Company of any registration statement on Form S-8 or a successor form
thereto; or (H) the issuance of up to 5% of the outstanding shares of Common Stock, or securities convertible into, exercisable for,
or which are otherwise exchangeable for, Stock, immediately following the Closing Date, in acquisitions, collaborations, joint ventures
or other similar strategic transactions, provided that such recipients enter into a lock-up agreement with the Representatives.
(j) Reporting
Requirements. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by
Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report
the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the 1933 Act.
(k) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representatives, it will not
make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a
“free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the
Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses
listed on Schedule B-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that
has been reviewed by the Representatives. The Company represents that it has treated or agrees that it will treat each such free writing
prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined
in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including
timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives
and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(l) Testing-the-Waters
Materials. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event
or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement,
at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(m) Emerging
Growth Company Status. The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company
at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the 1933 Act and (ii) completion
of the 90-day restricted period referred to in Section 3(i).
(n) Registration
Statement of Warrant Shares. The Company shall, at all times while any Warrants are outstanding, use its commercially reasonable best
efforts to maintain a registration statement covering the issue and sale of the Warrant Shares upon exercise of the Warrants such that
the Warrant Shares, when issued, will not be subject to resale restrictions under the Securities Act except to the extent that the Warrant
Shares are owned by affiliates. The Company shall, at all times while any Warrants are outstanding, reserve and keep available out of
the aggregate of its authorized but unissued and otherwise unreserved shares of Common Stock, solely for the purpose of enabling it to
issue Warrant Shares upon exercise of such Warrants, the number of Warrant Shares that are initially issuable and deliverable upon the
exercise of the then-outstanding Warrants.
SECTION 4. Payment
of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each
amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each
Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery
of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the certificates or security
entitlements for the Shares to the Underwriters and the Warrants to the purchasers, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters or purchasers, (iv) the fees
and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities and the
Warrant Shares under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of a
“Blue Sky Survey” and any supplement thereto, (vi) the fees and expenses of any transfer agent or registrar for the Securities,
(vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection
with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives
and officers of the Company and any such consultants, and the cost of aircraft and other transportation chartered in connection with the
road show, (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by FINRA of the terms of the sale of the Shares and the Warrant Shares, such legal expense reimbursement not to exceed
$25,000, (ix) the fees and expenses incurred in connection with the listing of the Shares and the Warrant Shares on the Nasdaq Global
Select Market, and (x) the costs and expenses (including, without limitation, any damages or other amounts payable in connection
with legal or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters
caused by a breach of the representation contained in the third sentence of Section 1(a)(ii). Except as provided in this Section 4,
the Underwriters will pay all of their own costs and expenses, including the fees and disbursements of their counsel, stock transfer taxes
payable on resale of any of the Securities by them, any advertising expenses connected with any offers they may make and the travel and
lodging expenses incurred by the Underwriters in connection with any road show.
(b) Termination
of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5, Section 9(a)(i),
Section 9(a)(iii) or Section 10 hereof, the Company shall reimburse the Underwriters for all of their reasonably documented
out-of-pocket expenses, including the reasonable and documented fees and disbursements of counsel for the Underwriters; provided
that if this Agreement is terminated by the Representatives pursuant to Section 10 hereof, the Company will have no obligation to
reimburse any defaulting Underwriter.
SECTION 5. Conditions
of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company contained herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof,
to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness
of Registration Statement. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective
and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto
has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been
issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated;
and the Company has complied with each request (if any) from the Commission for additional information to the reasonable satisfaction
of counsel to the Underwriters.
(b) Opinions
of Counsel for Company. At the Closing Time, the Representatives shall have received the opinion and the negative assurance letter,
each dated the Closing Time, of Fenwick & West LLP, counsel for the Company, together with the opinion of Xxxxxx Xxxxxxx Xxxxx &
Xxxxxxxxxxx LLP, special counsel for the Company with respect to intellectual property matters, each in form and substance satisfactory
to counsel for the Underwriters.
(c) Opinion
of Counsel for Underwriters. At the Closing Time, the Representatives shall have received the opinion, and negative assurance letter,
each dated the Closing Time, of Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and Xxxxx, P.C., counsel for the Underwriters, together with signed
or reproduced copies of such opinion and letter for each of the other Underwriters in form and substance satisfactory to the Representatives.
In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State
of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions
of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company.
(d) Officers’
Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Company, whether or not arising in the ordinary
course of business, and the Representatives shall have received a certificate of the principal executive officer of the Company and of
the principal financial officer of the Company, dated the Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus
or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge,
contemplated.
(e) Accountant’s
Comfort Letter. At the time of the execution of this Agreement, the Representatives shall have received from CohnReznick LLP a letter,
dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration
Statement, the General Disclosure Package and the Prospectus.
(f) Bring-down
Comfort Letter. At the Closing Time, the Representatives shall have received from CohnReznick LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except
that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(g) Approval
of Listing. At the Closing Time, the Nasdaq Stock Market LLC shall not have raised any objection to the listing of the Shares and
the Warrant Shares on the Nasdaq Global Select Market.
(h) No
Objection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements relating to the offering of the Securities.
(i) Lock-up
Agreements. At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit A
hereto signed by the individuals or entities, as the case may be, set forth on Schedule C.
(j) Additional
Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with such other documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or
in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(k) Termination
of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, may be terminated by the Representatives by notice to the Company at any time at or prior to Closing Time and such termination
shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 4, 6, 7, 8,
14, 15 and 16 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification
of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under
the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be
a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material
fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication,
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in any materials or information
provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing
Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically),
or the omission or alleged omission in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters
Communication, the General Disclosure Package, the Prospectus (or any amendment or supplement thereto) or in any Marketing Materials of
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably
incurred and documented in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part
thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Underwriter Information.
(b) Indemnification
of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed to be a part
thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Underwriter Information.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for the reasonable fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more
than 60 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on
the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, in connection
with the statements or omissions, which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received
by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public
offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any
such 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 by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement
or omission or alleged omission.
Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions
received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7,
each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Shares and/or the Pre-Funded Warrants and the accompanying Common Warrants set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors
or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination
of Agreement.
(a) Termination.
The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in U.S. or international political, financial or economic conditions, in each case the effect
of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the completion of
the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the Nasdaq Global Select Market, or (iv) if trading generally on the NYSE American
or the New York Stock Exchange or in the Nasdaq Global Select Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission,
FINRA or any other governmental authority, (v) a material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium
has been declared by either Federal or New York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 4, 6, 7, 8, 15, 16 and 17 shall survive such termination
and remain in full force and effect.
SECTION 10. Default
by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have
the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters
reasonably satisfactory to the Company, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such
24-hour period, then:
(i) if
the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to
this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default
which does not result in a termination of this Agreement either the Representatives or the Company shall have the right to postpone Closing
Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure
Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be directed to SVB Securities at 0000 Xxxxxx xx xxx Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, attention of Xxxxxx X. Xxxxxx and to XX Xxxxx at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, xxxxxxxxx of Xxxxxxx Xxxxxxxx.
SECTION 12. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant
to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions,
is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand,
(b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company or its stockholders, creditors, employees or any other party, (c) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering of
the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) and no Underwriter has any obligation to the Company with respect to the offering of the Securities except the obligations
expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company and (e) the Underwriters have not provided any legal, accounting, regulatory
or tax advice with respect to the offering of the Securities and the Company has consulted its own respective legal, accounting, regulatory
and tax advisors to the extent it deemed appropriate.
SECTION 13. Recognition
of the U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under
this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this
Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
In the event that any Underwriter
that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the
United States or a state of the United States.
For purposes of this Agreement,
(A) “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in
accordance with, 12 U.S.C. § 1841(k); (B) “Covered Entity” means any of the following: (i) a “covered
entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and
(D) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated
thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 14. Parties.
This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than
the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Waiver
of Trial by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 16. GOVERNING
LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. Consent
to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby shall be instituted in (i) the federal courts of the United States of America located in the City and County
of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough
of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction
(except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 18. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Partial
Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
SECTION 20. Counterparts.
This Agreement may be executed in any number of counterparts (which may include counterparts delivered by any standard form of telecommunication),
each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same agreement. Counterparts
may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx) or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
SECTION 21. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 22. Entire
Agreement. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter hereof.
[SIGNATURE PAGES FOLLOW]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.
|
Very truly yours, |
|
|
|
ELEVATION ONCOLOGY, INC. |
|
|
|
By: |
/s/ Xxxxxx X. Xxxxx, Xx. |
|
|
Name: Xxxxxx X. Xxxxx, Xx. |
|
|
Title: Interim Chief Executive Officer and President; Chief Financial Officer |
CONFIRMED AND ACCEPTED
As of the date first above written:
SVB SECURITIES LLC |
|
|
|
By: |
/s/ Xxx Xxxxx, M.D. |
|
|
Name: Xxx Xxxxx, M.D. |
|
|
Title: Vice Chairman, Global Co-Head of Investment
Banking |
|
XXXXX AND COMPANY, LLC |
|
|
|
By: |
/s/ Xxxx Xxxxxx |
|
|
Name: Xxxx Xxxxxx |
|
|
Title: Managing Director |
|
For themselves and as Representatives of the other Underwriters named
in Schedule A hereto.
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
SCHEDULE A
The combined public offering price per Share and accompanying Common
Warrant shall be $2.25.
The combined public offering price per Pre-Funded Warrant and accompanying
Common Warrant shall be $2.2499.
The combined purchase price per Share and accompanying Common Warrant
to be paid by the several Underwriters shall be $2.115, being an amount equal to the combined public offering price set forth above less
$0.135 per Share and accompanying Common Warrant, and the combined purchase price per Pre-Funded Warrant and accompanying Common Warrant
to be paid by the Several Underwriters shall be $2.1149, being an amount equal to the combined public offering price set forth above less
$0.135 per Pre-Funded Warrant and accompanying Common Warrant.
Name of Underwriter | |
Number of Shares | | |
Number of Pre-Funded
Warrants | | |
Number of Common
Warrants | |
SVB Securities LLC | |
| 8,905,000 | | |
| 2,220,000 | | |
| 11,125,000 | |
Xxxxx and Company, LLC | |
| 8,905,000 | | |
| 2,220,000 | | |
| 11,125,000 | |
| |
| | | |
| | | |
| | |
| |
| | | |
| | | |
| | |
Total | |
| 17,810,000 | | |
| 4,440,000 | | |
| 22,250,000 | |
SCHEDULE B-1
Pricing Terms
| 1. | The Company is selling 17,810,000 shares of Common Stock and accompanying Common Warrants to purchase
up to 17,810,000 shares of Common Stock. |
| 2. | The combined public offering price per share of Common Stock and accompanying Common Warrant shall be
$2.25. |
| 3. | The Company is selling 4,440,000 Pre-Funded Warrants to purchase 4,440,000 shares of Common Stock and
4,440,000 accompanying Common Warrants to purchase 4,440,000 shares of Common Stock. |
| 4. | The combined public offering price per Pre-Funded Warrant and accompanying Common Warrant shall be $2.2499. |
| 5. | The exercise price per Common Warrant shall be $2.25. |
SCHEDULE B-2
Free Writing Prospectuses
None.
SCHEDULE B-3
List of Written Testing-the-Waters Communications
None.
SCHEDULE C
Lock-Up Parties
| · | Vertex
Global HC Fund II PTE., Ltd. |
| · | Qiming
U.S. Healthcare Fund II, L.P. |
Exhibit A
FORM OF LOCK-UP AGREEMENT
Exhibit B
FORM OF PRE-FUNDED WARRANT
Exhibit C
FORM OF COMMON WARRANT