Exhibit 1.2
Verastem, Inc.
Up to $100,000,000 of
Shares of Common Stock
(par value $0.0001 per share)
Controlled Equity OfferingSM
Sales Agreement
August 2, 2021
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Verastem, Inc., a Delaware
corporation (the “Company”), confirms its agreement (this “Agreement”) with Cantor
Xxxxxxxxxx & Co. (the “Agent”), as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it may in its sole discretion issue and sell through the Agent, up to $100,000,000 of shares of common stock
(the “Placement Shares”) of the Company, par value $0.0001 per share (the “Common Stock”);
provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares
that (a) exceeds the number or dollar amount of shares of Common Stock registered pursuant to the Registration Statement (as defined
below), pursuant to which the offering will be made, (b) exceeds the number of authorized but unissued and unreserved shares of Common
Stock, (c) exceeds the number or dollar amount of shares of Common Stock permitted to be sold under Form S-3 (including General
Instruction I.B.6 thereof, if applicable) or (d) exceeds the number or dollar amount of shares of Common Stock stated in the then-applicable
ATM Prospectus (as defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1
on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent
shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected
pursuant to the Registration Statement filed by the Company with the Securities and Exchange Commission (the “Commission”)
and which will be declared effective by the Commission, although nothing in this Agreement shall be construed as requiring the Company
to use the Registration Statement to issue Common Stock.
The Company has filed or will
file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), and
the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form S-3, including a base prospectus, relating to certain securities, including the Placement Shares to be issued from
time to time by the Company, and which incorporates by reference certain documents that the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the
registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the
Company (the “ATM Prospectus”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus
included as part of such registration statement, as supplemented by the ATM Prospectus, relating to the Placement Shares to be issued
from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain
a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be an ATM Prospectus), with respect to the
Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof
or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with
the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement
pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.”
The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement,
as it may be supplemented, if necessary, by the ATM Prospectus, in the form in which such prospectus or prospectuses and/or ATM Prospectus
have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations,
together with any issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.”
Any reference herein to the
Registration Statement or the Prospectus, including any ATM Prospectus or any Issuer Free Writing Prospectus, shall be deemed to refer
to and include the documents, if any, incorporated by reference therein (the “Incorporated Documents”), including,
unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any ATM
Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under
the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the ATM Prospectus, Prospectus
or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most
recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive
Data Electronic Application system when used by the Commission (collectively, “XXXXX”).
2. Placements.
Each time that the Company, in its sole discretion, wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify the Agent by electronic mail (or other method mutually agreed to in writing by the parties) of the number of Placement
Shares to be sold, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that
may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), the
form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set
forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to
each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may be amended in writing from time to time. The
Placement Notice shall be effective unless and until (i) the Agent declines to accept the terms contained therein for any reason,
in its sole discretion, within two (2) Business Days (as defined below) of receipt of such Placement Notice, (ii) the entire
amount of the Placement Shares thereunder have been sold, (iii) the Company suspends or terminates the Placement Notice or (iv) this
Agreement has been terminated under the provisions of Section 12. The amount of any discount, commission or other compensation
to be paid by the Company to the Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the
terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation
whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Agent and
the Agent does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein
and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3. Sale
of Placement Shares by the Agent. Subject to the provisions of Section 5(a), the Agent, for the period specified in the
Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state
and federal laws, rules and regulations and the rules of the Nasdaq Global Market, or any other national securities exchange
on which the Common Stock is then listed (the “Exchange”), to sell the Placement Shares up to the amount specified
in, and otherwise in accordance with the terms of, such Placement Notice. The Agent will provide written confirmation to the Company no
later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Agent pursuant
to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization
of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales.
Subject to the terms of the Placement Notice, the Agent may sell Placement Shares by any method permitted by law deemed to be an “at
the market offering” as defined in Rule 415(a)(4) of the Securities Act Regulations, including without limitation sales
made directly on or through the Exchange, on any other existing trading market for the Common Stock, in negotiated transactions at market
prices prevailing at the time of sale or at prices related to such prevailing market prices. Subject to the terms of a Placement Notice,
the Agent may also sell Placement Shares by any other method permitted by law, including but not limited to in privately negotiated transactions,
with the prior written consent of the Company. “Trading Day” means any day on which Common Stock is traded on
the Exchange.
4. Suspension
of Sales. The Company or the Agent may, upon notice to the other party in writing (including by electronic mail to each of the individuals
of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom
the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by electronic mail to each of the individuals of
the other party set forth on Schedule 3), suspend any sale of Placement Shares (a “Suspension”); provided, however,
that such Suspension shall not affect or impair any party’s obligations with respect to any Placement Shares sold hereunder prior
to the receipt of such notice. While a Suspension is in effect any obligation under Sections 7(l), 7(m), and 7(n) with
respect to the delivery of certificates, opinions, or comfort letters to the Agent, shall be waived. Each of the parties agrees that no
such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named
on Schedule 3 hereto, as such Schedule may be amended from time to time.
5. Sale
and Delivery to the Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law, regulations and rules to sell such Placement Shares up to the amount specified, and otherwise in accordance with
the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be
successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or
entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable law, regulations and rules to sell such Placement Shares as
required under this Agreement and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis
pursuant to this Agreement, except as otherwise agreed by the Agent and the Company in writing.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to be delivered to
the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal
to the aggregate sales price received by the Agent, after deduction for (i) the Agent’s commission, discount or other compensation
for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any governmental
or self-regulatory organization in respect of such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided the Agent shall have given the
Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto
which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Agent
will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement Date.
The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares
on a Settlement Date, then in addition to and in no way limiting the rights and obligations set forth in Section 10(a) hereto,
it will (i) hold the Agent harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as
incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to
the Agent any commission, discount, or other compensation to which it would otherwise have been entitled absent such default.
(d) Denominations;
Registration. Certificates for the Placement Shares, if any, shall be in such denominations and registered in such names as the Agent
may reasonably request in writing at least one full Business Day before the Settlement Date. The certificates for the Placement Shares,
if any, will be made available by the Company for examination and packaging by the Agent in The City of New York not later than 12:00
p.m. (New York time) on the Business Day prior to the Settlement Date.
(e) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount, (B) the
amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time
to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof or a
duly authorized executive committee, and notified to the Agent in writing. Under no circumstances shall the Company cause or request the
offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time
by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified
to the Agent in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement
Shares sold pursuant to this Agreement to exceed the Maximum Amount.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different time:
(a) Registration
Statement and Prospectus. The Company and, assuming no act or omission on the part of the Agent that would make such statement untrue,
the transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use of Form S-3
under the Securities Act. The Registration Statement has been filed or will be filed with the Commission and has been or will be declared
effective by the Commission under the Securities Act prior to the issuance of any Placement Notices by the Company. The ATM Prospectus
will name the Agent as the agent in the section entitled “Plan of Distribution.” The Company has not received, and has no
notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings
for that purpose. The Registration Statement and the offer and sale of Placement Shares pursuant to this Agreement meet the requirements
of Rule 415 under the Securities Act and comply in all material respects with said rule. Any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any amendments or supplements thereto,
and all Incorporated Documents that were filed with the Commission on or prior to the date of this Agreement have been delivered, or are
available through XXXXX, to the Agent and its counsel. The Company has not distributed and, prior to the later to occur of each Settlement
Date and completion of the distribution of the Placement Shares, will not distribute any offering material in connection with the offering
or sale of the Placement Shares other than the Registration Statement and the Prospectus, including any Permitted Free Writing Prospectus
(as defined below). The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently listed on
the Exchange under the trading symbol “VSTM.” The Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange, nor has the Company
received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of the Exchange.
(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or
supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with
the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto relating to the Placement
Shares, on the date thereof and at each Applicable Time, did not or will not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The Incorporated Documents did not, and any further Incorporated Documents filed after the date of this Agreement will not, when filed
with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to be stated in such document
or necessary to make the statements in such document, in the light of the circumstances under which they were made, not misleading. The
foregoing shall not apply to statements in, or omissions from, any such document made in reliance upon, and in conformity with, information
furnished to the Company by the Agent specifically for use in the preparation thereof as defined in Section 11(b).
(c) Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus, or any amendment
or supplement thereto, and the Incorporated Documents, when such documents were or are filed with the Commission under the Securities
Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable. At each Settlement Date, the Registration Statement
and the Prospectus, as amended, as of such date, will conform in all material respects with the requirements of the Securities Act.
(d) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement,
the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present fairly, in all
material respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated
and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified
(subject to normal year-end audit adjustments for interim financial statements) and have been prepared in compliance with the requirements
of the Securities Act and Exchange Act, as applicable, and in conformity with GAAP (as defined below) applied on a consistent basis (except
for such adjustments to accounting standards and practices as are noted therein) during the periods involved; the other financial
data and financial statistics with respect to the Company and the Subsidiaries contained or incorporated by reference in the Registration
Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented in all material respects
and prepared on a basis consistent, in all material respects, with the financial statements and books and records of the Company; there
are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration
Statement or the Prospectus that are not included or incorporated by reference as required; the Company and the Subsidiaries do not have
any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in the Registration
Statement (excluding the exhibits thereto) and the Prospectus or in a document incorporated by reference therein; and all disclosures
contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any,
constituting “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply
in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement 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.
(e) Conformity
with XXXXX Filing. The Prospectus delivered to the Agent for use in connection with the sale of the Placement Shares pursuant to this
Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via XXXXX, except
to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each of the Subsidiaries are duly organized, validly existing as a corporation and in good standing under the laws of
their respective jurisdictions of organization. The Company and each of the Subsidiaries are duly licensed or qualified as a foreign corporation
for transaction of business and in good standing under the laws of each other jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such license or qualification, and have all corporate power and authority
necessary to own or hold their respective properties and to conduct their respective businesses as described in the Registration Statement
and the Prospectus, except where the failure to be so qualified or in good standing or have such power or authority would not, individually
or in the aggregate, have a material adverse effect on or affecting the assets, business, operations, earnings, properties, condition
(financial or otherwise), prospects, stockholders’ equity or results of operations of the Company and the Subsidiaries taken as
a whole, or prevent or materially interfere with the consummation of the transactions contemplated hereby (a “Material Adverse
Effect”).
(g) Subsidiaries.
The subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”) are the Company’s only
significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission). Except as set forth
in the Registration Statement and in the Prospectus, the Company owns, directly or indirectly, all of the equity interests of the Subsidiaries
free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests
of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. No Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s
capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.
(h) No
Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries are subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental
or regulatory authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or default that
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge,
no other party under any material contract or other agreement to which it or any of its Subsidiaries is a party is in default in any respect
thereunder where such default would have a Material Adverse Effect.
(i) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any (including any Incorporated Document), there has not been (i) any Material Adverse
Effect or the occurrence of any development that the Company reasonably expects will result in a Material Adverse Effect, (ii) any
transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is material to the Company
and the Subsidiaries taken as a whole, (iv) any material change in the capital stock or outstanding long-term indebtedness of the
Company or any of its Subsidiaries (other than (a) as a result of the sale of Placement Shares, (b) the issuance of equity awards
under the Company’s existing equity incentive plans or (c) changes in the number of shares of outstanding Common Stock of the
Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, shares of Common
Stock (including warrants) outstanding on the date hereof, or the vesting of restricted stock units outstanding on the date hereof) or
(v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, other
than in each case above in the ordinary course of business or as otherwise disclosed in the Registration Statement or Prospectus (including
any Incorporated Document).
(j) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and nonassessable and, other
than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration Statement and the
Prospectus as of the dates referred to therein (other than the grant of additional options or other equity awards under the Company’s
existing equity incentive plans, or changes in the number of outstanding shares of Common Stock of the Company due to the issuance of
shares upon the exercise or conversion of securities exercisable for, or convertible into, Common Stock outstanding on the date hereof,
or the vesting of restricted stock units outstanding on the date hereof) and such authorized capital stock conforms in all material respects
to the description thereof set forth in the Registration Statement and the Prospectus. The description of the securities of the Company
in the Registration Statement and the Prospectus is complete and accurate in all material respects. Except as disclosed in or contemplated
by the Registration Statement or the Prospectus, as of the dates referred to therein, the Company did not have outstanding any options
to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any
contracts or commitments to issue or sell, any shares of capital stock or other securities.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles.
(l) Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein,
will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim (other than any pledge, lien, encumbrance, security interest or other claim arising from an act or omission of
the Agent or a purchaser), including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued, will conform in all
material respects to the description thereof set forth in or incorporated into the Prospectus.
(m) No
Consents Required. Except as set forth in the Registration Statement or Prospectus, no consent, approval, authorization, order, registration
or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and
performance by the Company of this Agreement, or the issuance and sale by the Company of the Placement Shares, except for the registration
of the Placement Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications
as may be required under applicable state securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority, Inc.
(“FINRA”) or the Exchange in connection with the sale of the Placement Shares by the Agent.
(n) No
Preferential Rights. Except as set forth in the Registration Statement and the Prospectus, (i) no person, as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other capital stock or
other securities of the Company (other than outstanding options or warrants to purchase Common Stock or options or other equity securities
that may be granted from time to time under the Company’s equity incentive plans which are disclosed in the Registration Statement
and Prospectus), (ii) no Person has any preemptive rights, resale rights, rights of first refusal, or any other rights (whether pursuant
to a “poison pill” provision or otherwise) to purchase any Common Stock or shares of any other capital stock or other securities
of the Company, (iii) no Person has the right to act as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Common Stock, and (iv) no Person has the right, contractual or otherwise, to require the Company to register
under the Securities Act any Common Stock or shares of any other capital stock or other securities of the Company, or to include any such
shares or other securities in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise, except for such rights as have
been waived in writing on or prior to the date hereof.
(o) Independent
Public Accounting Firm. Ernst & Young LLP (the “Accountant”), whose report on the consolidated
financial statements of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K
filed with the Commission and incorporated by reference into the Registration Statement and the Prospectus, are and, during the periods
covered by their report, were an independent registered public accounting firm within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of the auditor
independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) with respect to the Company.
(p) Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus, other than such agreements
that have expired by their terms or whose termination is disclosed in the Registration Statement and the Prospectus, are legal, valid
and binding obligations of the Company enforceable in accordance with their respective terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by
general equitable principles and, (ii) the indemnification provisions of certain agreements may be limited by federal or state securities
laws or public policy considerations in respect thereof, except for any unenforceability that, individually or in the aggregate, would
not have a Material Adverse Effect.
(q) No
Litigation. Except as set forth in the Registration Statement, the Prospectus or any Incorporated Document, (i) there are no
legal, governmental or regulatory actions, suits or proceedings pending, nor, to the Company’s knowledge, any legal, governmental
or regulatory audits or investigations, to which the Company or any of the Subsidiaries is a party or to which any property of the Company
or any of the Subsidiaries is the subject that, individually or in the aggregate, if determined adversely to the Company or such Subsidiary,
would reasonably be expected to have a Material Adverse Effect; (ii) to the Company’s knowledge, no such actions, suits or
proceedings are threatened by any governmental or regulatory authority or threatened by others that, individually or in the aggregate,
if determined adversely to the Company or any of the Subsidiaries, would have a Material Adverse Effect; (iii) there are no
current or pending legal, governmental or regulatory audits, actions, suits or proceedings, or to the Company’s knowledge, investigations,
that are required under the Securities Act to be described in the Prospectus that are not so described; and (iv) there are no contracts
or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement that are not so filed.
(r) Consents
and Permits. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries have made all
filings, applications and submissions required by, possesses and is operating in compliance with, all approvals, licenses, certificates,
certifications, clearances, consents, grants, exemptions, marks, notifications, orders, permits and other authorizations issued by, the
appropriate federal, state or foreign governmental or regulatory authorities (including, without limitation, the United States Food and
Drug Administration (the “FDA”), the United States Drug Enforcement Administration or any other foreign, federal,
state, provincial, court or local government or regulatory authorities including self-regulatory organizations engaged in the regulation
of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials) necessary for the ownership or lease of their
respective properties or to conduct their respective businesses as described in the Registration Statement and the Prospectus (collectively,
“Permits”), except for such Permits the failure of which to possess, obtain or make would not reasonably be
expected to have a Material Adverse Effect; the Company and its Subsidiaries are in compliance with the terms and conditions of all such
Permits, except where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect; all of the Permits
are valid and in full force and effect, except where any invalidity, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any written notice of proceedings
relating to the limitation, revocation, cancellation, suspension, modification or non-renewal of any such Permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, or has any reason to believe
that any such license, certificate, permit or authorization will not be renewed in the ordinary course to the extent required. To the
extent required by applicable laws and regulations of the FDA, the Company or the applicable Subsidiary has submitted to the FDA an Investigational
New Drug Application or amendment or supplement thereto for each clinical trial it has conducted or sponsored or is conducting or sponsoring;
all such submissions were in material compliance with applicable laws and rules and regulations when submitted and no material deficiencies
have been asserted by the FDA with respect to any such submissions.
(s) Regulatory
Filings. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries has
failed to file with the applicable regulatory authorities (including, without limitation, the FDA, or any foreign, federal, state, provincial
or local governmental or regulatory authority performing functions similar to those performed by the FDA) any required filing, declaration,
listing, registration, report or submission, except for such failures that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; except as disclosed in the Registration Statement and the Prospectus, all such filings, declarations,
listings, registrations, reports or submissions were in compliance in all material respects with applicable laws when filed and no deficiencies
have been asserted by any applicable regulatory authority with respect to any such filings, declarations, listings, registrations, reports
or submissions, except for any deficiencies that, individually or in the aggregate, would not have a Material Adverse Effect. The Company
has operated and currently is, in all material respects, in compliance with the United States Federal Food, Drug, and Cosmetic Act, all
applicable rules and regulations of the FDA and other federal, state, local and foreign governmental bodies exercising comparable
authority.
(t) Intellectual
Property. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries own, possess, license
or have other rights to use all foreign and domestic patents, patent applications, trade and service marks, trade and service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology, Internet domain names, know-how and other intellectual
property (collectively, the “Intellectual Property”), which to the Company’s knowledge, is necessary for
the conduct of their respective businesses as now conducted except to the extent that the failure to own, possess, license or otherwise
hold adequate rights to use such Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect. Except
as disclosed in the Registration Statement and the Prospectus (i) to the Company’s knowledge, there are no rights of third
parties to any such Intellectual Property owned by the Company and its Subsidiaries other than any co-owner of any patent or patent application
constituting Intellectual Property who is listed as such on the records of the U.S. Patent and Trademark Office; (ii) to the Company’s
knowledge, there is no infringement by third parties of any such Intellectual Property; (iii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s and its Subsidiaries’ rights in
or to any such Intellectual Property, and the Company is unaware of any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any such Intellectual Property; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate
any patent, trademark, copyright, trade secret or other proprietary rights of others; (vi) to the Company’s knowledge, there
is no third-party U.S. patent or published U.S. patent application which contains claims for which an Interference Proceeding (as defined
in 35 U.S.C. § 135) has been commenced against any patent or patent application described in the Prospectus as being owned by or
licensed to the Company; and (vii) the Company and its Subsidiaries have complied in all material respects with the terms of each
agreement pursuant to which Intellectual Property has been licensed to the Company or such Subsidiary, and all such agreements are in
full force and effect except for such agreements which have been terminated, except, in the case of any of clauses (i)-(vii) above,
for any such infringement by third parties or any such pending or threatened suit, action, proceeding or claim as would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(u) Clinical
Studies. To the Company’s knowledge, the preclinical studies and tests and clinical trials described in the Registration Statement
and the Prospectus being conducted by or on behalf of the Company were, and, if still pending, are, being conducted in all material respects
in accordance with the experimental protocols, procedures and controls pursuant to, where applicable, accepted medical and scientific
standards for products or product candidates comparable to those being developed by the Company; the descriptions of such studies, tests
and trials, and the results thereof, contained in the Prospectus are accurate and complete in all material respects; the Company is not
aware of any tests, studies or trials not described in the Prospectus, the results of which reasonably call into question the results
of the tests, studies and trials described in the Prospectus; and the Company has not received any written notice or correspondence from
the FDA or any foreign, state or local governmental body exercising comparable authority or any institutional review board or comparable
authority requiring termination, suspension, clinical hold or material modification of any tests, studies or trials.
(v) Market
Capitalization. At the time the Registration Statement will be declared effective, and at the time the Company’s most recent
Annual Report on Form 10-K was filed with the Commission, the Company met or will meet the then applicable requirements for the use
of Form S-3 under the Securities Act, including, but not limited to, General Instruction I.B.1 of Form S-3. The Company satisfies
the pre-1992 eligibility requirements for the use of a registration statement on Form S-3 in connection with this offering (the pre-1992
eligibility requirements for the use of the registration statement on Form S-3 include (i) having a non-affiliate, public common
equity float of at least $150 million or a non-affiliate, public common equity float of at least $100 million and annual trading volume
of at least three million shares and (ii) having been subject to the Exchange Act reporting requirements for a period of 36 months).
The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least
12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as
defined in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an
entity that is not a shell company.
(w) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term
leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(x) Certain
Market Activities. Neither the Company, nor any of the Subsidiaries, nor, to the knowledge of the Company, any of their respective
directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably
be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Placement Shares.
(y) Broker/Dealer
Relationships. Neither the Company nor any of the Subsidiaries (i) is required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls
or is a “person associated with a member” or “associated person of a member” (within the meaning set forth in
the FINRA Manual).
(z) No
Reliance. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(aa) Taxes.
The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed
and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in
good faith, except where the failure to so file or pay would not have a Material Adverse Effect. Except as otherwise disclosed in or contemplated
by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company or any of its Subsidiaries
which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has no
knowledge of any federal, state or other governmental tax deficiency, penalty or assessment which has been or might be asserted or threatened
against it which would have a Material Adverse Effect.
(bb) Title
to Real and Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries
have good and marketable title in fee simple to all items of real property owned by them, good and valid title to all personal property
described in the Registration Statement or Prospectus as being owned by them that are material to the businesses of the Company or the
Subsidiaries, in each case free and clear of all liens, encumbrances and claims, except those that (i) do not materially interfere
with the use made and proposed to be made of such property by the Company and any of its Subsidiaries or (ii) would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect. Any real or personal property described in the Registration
Statement or Prospectus as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable
leases, except those matters that (A) do not materially interfere with the use made or proposed to be made of such property by the
Company or any of its Subsidiaries or (B) would not, individually or in the aggregate, have a Material Adverse Effect. To the best
of the Company’s knowledge, each of the properties of the Company and its Subsidiaries complies with all applicable codes, laws
and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access to such properties),
except to the extent disclosed in the Registration Statement or Prospectus or except for such failures to comply that would not, individually
or in the aggregate, reasonably be expected to interfere in any material respect with the use made and proposed to be made of such property
by the Company and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or its Subsidiaries has received
from any governmental or regulatory authorities any notice of any condemnation of, or zoning change affecting, the properties of the Company
and its Subsidiaries, and the Company knows of no such condemnation or zoning change which is threatened, except for such that would not
reasonably be expected to interfere in any material respect with the use made and proposed to be made of such property by the Company
and its Subsidiaries or otherwise have a Material Adverse Effect, individually or in the aggregate.
(cc) Environmental
Laws. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries (i) are in compliance
with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental
Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses as described in the Registration Statement and the Prospectus; and
(iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release
of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above,
for any such failure to comply or failure to receive required permits, licenses, other approvals or liability as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dd) Disclosure
Controls. The Company and each of its Subsidiaries maintain a consolidated system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. As of the end of the Company’s most recently completed fiscal year,
the Company’s internal control over financial reporting was effective and as of the end of the most recently completed fiscal year,
the Company is not aware of any material weaknesses in its internal control over financial reporting (other than as set forth in the Prospectus).
Since the date of the latest audited financial statements of the Company included in the Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting (other than as set forth in the Prospectus). The Company has established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures
to ensure that material information relating to the Company and each of its Subsidiaries is made known to the certifying officers by others
within those entities, including during the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the
Company’s controls and procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal year
most recently ended (such date, the “Evaluation Date”). The Company presented in its Form 10-K for the
fiscal year most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date and the disclosure controls and procedures were effective at the reasonable assurance
level. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such term is defined
in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other factors that
could significantly affect the Company’s internal controls.
(ee) Xxxxxxxx-Xxxxx.
There is and has been no failure on the part of the Company or, to the Company’s knowledge, any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any applicable provisions of the Xxxxxxxx-Xxxxx Act
and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer
of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company as
applicable) has made all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to all reports, schedules,
forms, statements and other documents required to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence,
“principal executive officer” and “principal financial officer” shall have the meanings given to such terms in
the Xxxxxxxx-Xxxxx Act.
(ff) Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to the Agent pursuant
to this Agreement.
(gg) Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge
of the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.
(hh) Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares, will be an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(ii) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record
keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”), except as would not reasonably be expected to result in a Material Adverse Effect; and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(jj) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or, to the
knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structural finance,
special purpose or limited purpose entity (each, an “Off-Balance Sheet Transaction”) that could reasonably be
expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources, including
those Off-Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which
have not been described as required.
(kk) Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market” or
continuous equity transaction.
(ll) ERISA.
To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the
Company or any of its Subsidiaries for employees or former employees of the Company and any of its Subsidiaries has been maintained in
material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but
not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability
to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and
for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value
of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.
(mm) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) (a “Forward-Looking Statement”) contained in the Registration Statement and the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. The Forward-Looking Statements incorporated
by reference in the Registration Statement and the Prospectus from the Company’s Annual Report on Form 10-K for the fiscal
year most recently ended (i) except for any Forward-Looking Statement included in any financial statements or notes thereto, are
within the coverage of the safe harbor for forward looking statements set forth in Section 27A of the Securities Act, Rule 175(b) under
the Securities Act or Rule 3b-6 under the Exchange Act, as applicable, (ii) at the time made, were made by the Company with
a reasonable basis and in good faith and reflect the Company’s good faith commercially reasonable best estimate of the matters described
therein, and (iii) to the extent applicable, have been prepared in accordance with Item 10 of Regulation S-K under the Securities
Act.
(nn) Agent
Purchases. The Company acknowledges and agrees that the Agent has informed the Company that the Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect, provided,
that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent the Agent may engage
in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity)
and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agent.
(oo) Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(pp) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and
each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies engaged
in similar businesses in similar industries.
(qq) No
Improper Practices. (i) Neither the Company nor the Subsidiaries, nor any director or officer of the Company or any Subsidiary
nor, to the Company’s knowledge, any employee of the Company or any Subsidiary, agent, affiliate or other person acting on behalf
of the Company or any Subsidiary has, in the past five years, made any unlawful contributions to any candidate for any political office
(or failed fully to disclose any contribution in violation of applicable law) or made any contribution or other payment to any official
of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty
in violation of any applicable law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or
indirect, exists between or among the Company or any Subsidiary or, to the Company’s knowledge, any affiliate of any of them, on
the one hand, and the directors, officers and stockholders of the Company or any Subsidiary, on the other hand, that is required by the
Securities Act to be described in the Registration Statement and the Prospectus that is not so described; (iii) no relationship,
direct or indirect, exists between or among the Company or any Subsidiary or any affiliate of them, on the one hand, and the directors,
officers or stockholders of the Company or, to the knowledge of the Company, any Subsidiary, on the other hand, that is required by the
rules of FINRA to be described in the Registration Statement and the Prospectus that is not so described; (iv) except as described
in the Registration Statement and the Prospectus, there are no material outstanding loans or advances or material guarantees of indebtedness
by the Company or any Subsidiary to or for the benefit of any of their respective officers or directors or any of the members of the families
of any of them; (v) the Company has not offered, or caused any placement agent to offer, Common Stock to any person with the intent
to influence unlawfully (A) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s
level or type of business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish favorable
information about the Company or any Subsidiary or any of their respective products or services; and (vi) neither the Company nor
any Subsidiary nor any director, officer or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent,
affiliate or other person acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any applicable
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law (collectively,
“Anti-Corruption Laws”), (B) promised, offered, provided, attempted to provide or authorized the provision
of anything of value, directly or indirectly, to any person for the purpose of obtaining or retaining business, influencing any act or
decision of the recipient, or securing any improper advantage; or (C) made any payment of funds of the Company or any Subsidiary
or received or retained any funds in violation of any Anti-Corruption Laws.
(rr) Status
Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities Act
at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(ss) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of
each Applicable Time, did not, does not and will not, through the completion of the Placement for which such Issuer Free Writing Prospectus
is used or deemed used, include any information that conflicted, conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any Incorporated Document that has not been superseded or modified. The foregoing sentence does
not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by the Agent specifically for use therein as described in Section 11(b).
(tt) No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation
of any of the transactions contemplated herein, nor the compliance by the Company with the terms and provisions hereof will conflict with,
or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default under, or has resulted
in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant
to, the terms of any contract or other agreement to which the Company may be bound or to which any of the property or assets of the Company
is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts, breaches and defaults
that would not have a Material Adverse Effect; nor will such action result (x) in any violation of the provisions of the organizational
or governing documents of the Company, or (y) in any material violation of the provisions of any statute or any order, rule or
regulation applicable to the Company or of any court or of any federal, state or other regulatory authority or other government body having
jurisdiction over the Company other than, with respect to this clause (y) only, any violation that would not have a Material Adverse
Effect.
(uu) Sanctions.
(i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”)
or, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph (uu), “Person”) that is, or is owned or controlled by a Person that
is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authorities, including,
without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions
Evaders List (as amended, collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory
(including, without limitation, Cuba, Iran, North Korea, Syria and the Crimea Region of the Ukraine) (the “Sanctioned
Countries”).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions or is a Sanctioned Country; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the Registration Statement and the Prospectus, for the past 5 years, it has
not engaged in, is not now knowingly engaging in, and will not knowingly engage in, any dealings or transactions with any Person, or in
any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned
Country.
(vv) Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to be paid
in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been complied with in all material respects.
(ww) Regulatory
Matters. Except as described in the Registration Statement or and the Prospectus, and except as would not, individually or in
the aggregate, have or may reasonably be expected to have a Material Adverse Effect: (i) neither the Company nor its Subsidiaries
has received any written notice of adverse filing, warning letter, untitled letter or other correspondence or notice from the FDA or other
relevant regulatory authorities, or any other court or arbitrator or federal, state, local or foreign governmental or regulatory authority,
alleging or asserting material noncompliance with the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.) or similar state,
federal or foreign law or regulation; (ii) the Company and its Subsidiaries, and to the Company’s knowledge, their respective
directors, officers, employees or agents, are and have been for the last three years in compliance in all material respects with applicable
health care laws, including without limitation, the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), the federal Anti-Kickback
Statute (42 U.S.C. § 1320a-7b(b)), the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the U.S. Civil False Claims Act
(31 U.S.C. § 3729 et seq.), 18 U.S.C. §§ 286 and 287, and the health care fraud criminal provisions under the U.S. Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42 U.S.C. § 1320d et seq.), the exclusion
laws (42 U.S.C. § 1320a-7), Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), HIPAA,
as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. § 17921 et seq.), each as amended,
and the regulations promulgated thereunder; and all other comparable local, state, federal, national, supranational and foreign laws,
and the regulations promulgated thereunder, (collectively, “Health Care Laws”); (iii) neither the Company
nor its Subsidiaries has received written notice of any ongoing claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any U.S. or non-U.S. federal, national, state, local or other governmental or regulatory authority, governmental
or regulatory agency or body, court, arbitrator or self-regulatory organization (each, a “Governmental Authority”)
or third party alleging that any product, operation or activity is in violation of any Health Care Laws or has any knowledge that any
such Governmental Authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding;
(iv) neither the Company nor any Subsidiary or any of their respective directors, officers, employees or, to the Company’s
knowledge, agents, is or has been debarred, suspended or excluded, or has been convicted of any crime or engaged in any conduct that would
result in a debarment, suspension or exclusion from any federal or state government health care program; and (v) the Company and
its Subsidiaries are not a party to nor have any ongoing reporting obligations pursuant to any corporate integrity agreement, deferred
prosecution agreement, monitoring agreement, consent decree, settlement order, plan of correction or similar agreement imposed by any
Governmental Authority.
(xx) Cybersecurity.
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company as currently conducted, free and
clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its Subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including all “Personal Data” (defined below) and all sensitive, confidential or regulated data (“Confidential
Data”) used in connection with their businesses. “Personal Data” means (i) a natural person’s
name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s
license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which
would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal
data” as defined by GDPR; (iv) any information which would qualify as “protected health information” under the
Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical
Health Act (collectively, “HIPAA”); (v) any “personal information” as defined by the California
Consumer Privacy Act (“CCPA”); and (vi) any other piece of information that allows the identification of
such natural person, or his or her family, or permits the collection or analysis of any data related to an identified person’s health
or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those
that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal review
or investigations relating to the same. The Company and its Subsidiaries are presently in material compliance with all applicable laws
or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems, Confidential Data, and Personal Data
and to the protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access, misappropriation or modification.
(yy) Compliance
with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation HIPAA, CCPA, and the European Union General
Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”).
To ensure compliance with the Privacy Laws, the Company has in place, complies with, and takes appropriate steps to ensure compliance
in all material respects with their policies and procedures relating to data privacy and security and the collection, storage, use, processing,
disclosure, handling, and analysis of Personal Data and Confidential Data (the “Policies”). The Company has
at all times made all disclosures to users or customers required by applicable laws and regulatory rules or requirements, and none
of such disclosures made or contained in any Policy have been inaccurate or in violation of any applicable laws and regulatory rules or
requirements in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice of
any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge
of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying
for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party
to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.
Any certificate signed by
an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agent promptly of the time when
any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare
and file with the Commission, promptly upon the Agent’s request, any amendments or supplements to the Registration Statement or
Prospectus that, in the Agent’s reasonable opinion may be necessary or advisable in connection with the distribution of the Placement
Shares by the Agent (provided, however, that the failure of the Agent to make such request shall not relieve the Company of any obligation
or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the Company in this Agreement
and provided, further, that the only remedy the Agent shall have with respect to the failure to make such filing shall be to cease making
sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement
to the Registration Statement or Prospectus relating to the Placement Shares or a security convertible into the Placement Shares unless
a copy thereof has been submitted to the Agent within a reasonable period of time before the filing and the Agent has not objected thereto
in good faith and with reasonable grounds (provided, however, that the failure of the Agent to make such objection shall not relieve the
Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made
by the Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure by the Company
to obtain such consent shall be to cease making sales under this Agreement); (iv) the Company will furnish to the Agent at the time
of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement or
Prospectus, except for those documents available via XXXXX; and (v) the Company will cause each amendment or supplement to the Prospectus
relating to the Placement Shares to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of
the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required
pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment or supplement with
the Commission under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be
made exclusively by the Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the
issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration
Statement pursuant to Rule 430B under the Securities Act, it will use its best efforts to comply with the provisions of and make
all requisite filings with the Commission pursuant to said Rule 430B and to notify the Agent promptly of all such filings relating
to the Placement Shares. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light
of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement
or Prospectus to comply with the Securities Act, the Company will promptly notify the Agent to suspend the offering of Placement Shares
during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance; provided, however, that the Company may delay any such amendment
or supplement if, in the reasonable judgment of the Company, it is in the best interests of the Company to do so. Until such time as the
Company shall have corrected such misstatement or omission or effected such compliance, the Company shall not notify the Agent to resume
the offering of Placement Shares.
(d) Listing
of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered by the
Agent under the Securities Act with respect to the offer and sale of the Placement Shares, the Company will use its reasonable best efforts
to cause the Placement Shares to be listed on the Exchange.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the expense of the Company) copies
of the Registration Statement, the Prospectus (including all Incorporated Documents) and all amendments and supplements to the Registration
Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating to the Placement Shares is
required to be delivered under the Securities Act, in each case as soon as reasonably practicable and in such quantities as the Agent
may from time to time reasonably request and, at the Agent’s reasonable request, will also furnish copies of the Prospectus to each
exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company shall not be required to furnish
any document (other than the Prospectus) to the Agent to the extent such document is available on XXXXX.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement Notice is delivered
to the Agent hereunder and ending on the third (3rd) Trading Day immediately following the final Settlement Date with respect to Placement
Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of all Placement
Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly or indirectly in any other “at-the-market”
or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock
(other than the Placement Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire, Common Stock prior to the latter of the termination of this Agreement and the thirtieth
(30th) day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement
Notice; provided, however, that such restrictions will not apply in connection with the Company’s issuance or sale of (i) Common
Stock, options to purchase Common Stock, other equity securities under the Company’s equity incentive plans, or Common Stock issuable
upon the exercise of options or other equity securities, pursuant to any employee or director stock option or benefits plan (including,
for the avoidance of doubt, pursuant to any inducement award agreement between any employee or director and the Company), stock ownership
plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan)
of the Company whether now in effect or hereafter implemented, (ii) Common Stock issuable upon conversion of securities or the exercise
of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on XXXXX or otherwise
in writing to the Agent and (iii) Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration
for mergers, acquisitions, licensing, other business combinations, or strategic alliances or corporate partnering transactions occurring
after the date of this Agreement which are not issued for capital raising purposes.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise the Agent promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agent or its representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents
and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Agent may reasonably
request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require the filing
of a prospectus supplement with respect to the sale of Placement Shares hereunder, the Company will (i) file a prospectus supplement
with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement will
set forth, within the relevant period, the amount of Placement Shares to be sold through the Agent, the Net Proceeds to the Company and
the compensation payable by the Company to the Agent with respect to such Placement Shares, and (ii) deliver such number of copies
of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or
regulations of such exchange or market.
(l) Representation
Dates; Certificate. (1) On or prior to the date of the first Placement Notice and (2) following delivery of the first Placement
Notice, each time the Company:
(i) files the Prospectus relating
to the Placement Shares (other than as part of any filing prior to the time of the initial effectiveness of the Registration Statement)
or amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than the Placement Shares)
the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective amendment, sticker, or supplement
but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Placement
Shares;
(ii) files an annual report on
Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material amendment
to the previously filed Form 10-K);
(iii) files its quarterly reports
on Form 10-Q under the Exchange Act; or
(iv) files a current report on
Form 8-K containing amended financial information relating to the Company (other than information “furnished” pursuant
to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the
Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date”);
the Company shall furnish the Agent (but in the
case of clause (iv) above only if the Agent reasonably determines that the information contained in such Form 8-K is material)
with a certificate dated the Representation Date, in the form attached hereto as Exhibit 7(l). The requirement to provide a certificate
under this Section 7(l) shall be waived for any Representation Date occurring at a time at which no Placement Notice
is pending (including, for clarity, a time a Suspension is in effect), which waiver shall continue until the earlier to occur of the date
the Company delivers a Placement Notice hereunder or instructions for the sale of Placement Shares under a suspended Placement Notice
(which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on
such waiver and did not provide the Agent with a certificate under this Section 7(l), then before the Company delivers the
instructions for the sale of Placement Shares or the Agent sells any Placement Shares pursuant to such instructions, the Company shall
provide the Agent with a certificate in conformity with this Section 7(l) dated as of the date of the Placement Notice
or the date that the instructions for the sale of Placement Shares are issued, as applicable.
(m) Legal
Opinions. (1) On or prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l) for
which no waiver is applicable and excluding the date of this Agreement, the Company shall cause to be furnished to the Agent a written
opinion of each of (A) Ropes & Xxxx LLP (“Company Counsel”), or other counsel satisfactory to
the Agent, and (B) Xxxxxxx Procter LLP (“IP Counsel”), or other counsel satisfactory to the Agent, in each
case in form and substance reasonably satisfactory to the Agent and its counsel, substantially similar to the forms previously provided
to the Agent and its counsel, modified as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, the Company shall be required to furnish to the Agent no more than one opinion from each of Company Counsel and IP
Counsel hereunder per calendar quarter, and the Company shall not be required to furnish any such opinions if the Company does not intend
to deliver a Placement Notice in such calendar quarter until such time as the Company delivers its next Placement Notice; provided, further,
that in lieu of such opinions for subsequent periodic filings under the Exchange Act, counsel may furnish the Agent with a letter (a “Reliance
Letter”) to the effect that the Agent may rely on a prior opinion delivered under this Section 7(m) to
the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance Letter).
(n) Comfort
Letter. (1) On or prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l) for
which no waiver is applicable and excluding the date of this Agreement, the Company shall cause its independent registered public accounting
firm to furnish the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which
shall meet the requirements set forth in this Section 7(n); provided, that if reasonably requested by the Agent, the Company
shall cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence of any material
transaction or event, including the restatement of the Company’s financial statements. The Comfort Letter from the Company’s
independent registered public accounting firm shall be in a form and substance satisfactory to the Agent, (i) confirming that they
are an independent registered public accounting firm within the meaning of the Securities Act and the Public Company Accounting Oversight
Board, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings
(the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with
any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to
relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(o) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or would reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Common Stock or (ii) sell, bid for, or purchase the Common Stock in violation of Regulation M, or pay anyone
any compensation for soliciting purchases of the Placement Shares other than the Agent.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries
will be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,”
as such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than a Permitted Free Writing Prospectus, approved in advance by the Company and the Agent in its capacity as
agent hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity as
such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities
Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares
hereunder.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent, to
qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain such
qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for less
than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so
long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(s) Xxxxxxxx-Xxxxx
Act. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted accounting principles and including those policies
and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions
and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit
the preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles,
(iii) that receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s
directors’ authorization, and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company and the Subsidiaries
will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx
Act, and the applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to
the Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such periodic
reports are being prepared.
(t) Officer’s
Certificate; Further Documentation. On or prior to the date of the first Placement Notice, the Company shall deliver to the Agent
a certificate of an officer of the Company and attested to by an executive officer of the Company, dated as of such date, certifying as
to (i) the Certificate of Incorporation of the Company, (ii) the By-laws of the Company, (iii) the resolutions of the Board
of Directors of the Company, or a duly authorized committee of the Board of Directors, authorizing the execution, delivery and performance
of this Agreement and the issuance of the Placement Shares and (iv) the incumbency of the officers duly authorized to execute this
Agreement and the other documents contemplated by this Agreement. Within five (5) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l) for which no waiver is
applicable and excluding the date of this Agreement, the Company shall have furnished to the Agent such further information, certificates
and documents as the Agent may reasonably request.
8. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing or electronic delivery
of the Prospectus as originally filed and of each amendment and supplement thereto relating to the Placement Shares, in such number as
the Agent shall deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance
and delivery of the certificates, if any, for the Placement Shares to the Agent, including any stock or other transfer taxes and any capital
duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Agent, (iv) the
fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the fees and disbursements of the counsel
to the Agent, payable upon the execution of this Agreement, in an amount not to exceed $50,000, (vi) the qualification or exemption
of the Placement Shares under state securities laws in accordance with the provisions of Section 7(r) hereof, including
filing fees, but excluding fees of the Agent’s counsel (except as may be covered under clause (v)), (vii) the printing and
delivery to the Agent of copies of any Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto relating
to the Placement Shares in such number as the Agent shall deem necessary, (viii) the preparation, printing and delivery to the Agent
of copies of the blue sky survey, (ix) the fees and expenses of the transfer agent and registrar for the Common Stock, (x) the
filing and other fees incident to any review by FINRA of the terms of the sale of the Placement Shares including the fees of the Agent’s
counsel (subject to the cap, set forth in clause (v) above), and (xi) the fees and expenses incurred in connection with the
listing of the Placement Shares on the Exchange.
9. Conditions
to the Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance in all material respects
by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable
judgment, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) in all material respects of the following
additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the (i) resale of all
Placement Shares issued to the Agent and not yet sold by the Agent and (ii) sale of all Placement Shares contemplated to be issued
by any Placement Notice.
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event
that requires the making of any changes in the Registration Statement, the Prospectus or material Incorporated Document so that, in the
case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading and so that, in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) No
Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinion is material, or
omits to state a fact that in the Agent’s reasonable opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any material adverse change in the authorized capital stock of the Company or any Material Adverse Effect or any development
that would cause a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities
(other than asset backed securities) by any rating organization or a public announcement by any rating organization that it has under
surveillance or review its rating of any of the Company’s securities (other than asset backed securities), the effect of which,
in the case of any such action by a rating organization described above, in the reasonable judgment of the Agent (without relieving the
Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with
the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinions. The Agent shall have received the opinions of Company Counsel and IP Counsel required to be delivered pursuant to Section 7(m) on
or before the date on which such delivery of such opinions is required pursuant to Section 7(m).
(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or
before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(n).
(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on or
before the date on which delivery of such certificate is required pursuant to Section 7(l).
(h) No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been delisted
from the Exchange.
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company
shall have furnished to the Agent, upon the Agent’s request, such appropriate further information, certificates, letters and other
documents as the Agent may reasonably request.
(j) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the
issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(k) Approval
for Listing. The Placement Shares shall either have been approved for listing on the Exchange, subject only to notice of issuance,
or the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance of any
Placement Notice and the Exchange shall have reviewed such application and not provided any objections thereto.
(l) FINRA.
FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable to the Agent as
described in the Prospectus.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 12(a).
10. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective partners, members,
directors, officers, employees and agents and each person, if any, who controls the Agent or any affiliate within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any governmental 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 10(d) below) any such settlement is effected with the written consent of the Company, which
consent shall not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any governmental 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 shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agent Information.
(b) Agent
Indemnification. Agent agrees to indemnify and hold harmless the Company and its directors and each officer and director of the Company
who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 10(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus, (or any amendment or supplement
thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to the Agent or furnished
to the Company in writing by the Agent expressly for use therein. The Company hereby acknowledges that the only information that the Agent
has furnished to the Company expressly for use in the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus (or
any amendment or supplement thereto) are the statements set forth in the [seventh] and [eighth] paragraphs under the caption “Plan
of Distribution” in the ATM Prospectus (the “Agent Information”).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under
this Section 10, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section 10 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 10 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except
for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will
be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may
be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on
behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements
and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction (plus local counsel) at
any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent if such consent is required by this Section 10(c). No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section 10 (whether or not any indemnified party
is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 10(a)(ii) effected without its written consent if (1) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (3) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 10 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient
from the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted) to which the Company and the Agent may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The relative benefits received
by the Company on the one hand and the Agent on the other hand shall be deemed to be in the same proportion as the total Net Proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by the
Agent (before deducting expenses) from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided
by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one
hand, and the Agent, on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense
or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company or the Agent, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the
Agent agree that it would not be just and equitable if contributions pursuant to this Section 10(e) were to be determined
by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect
thereof, referred to above in this Section 10(e) shall be deemed to include, for the purpose of this Section 10(e),
any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action
or claim to the extent consistent with Section 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(e),
the Agent shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 10(e),
any person who controls a party to this Agreement within the meaning of the Securities Act, any affiliates of the Agent and any officers,
directors, partners, employees or agents of the Agent, will have the same rights to contribution as that party, and each officer and director
of the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in each case to
the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made under this Section 10(e), will notify any such party or parties
from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may
be sought from any other obligation it or they may have under this Section 10(e) except to the extent that the failure
to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought.
Except for a settlement entered into pursuant to the last sentence of Section 10(c) hereof, no party will be liable for
contribution with respect to any action or claim settled without its written consent if such consent is required pursuant to Section 10(c) hereof.
11. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or the Company (or any of
their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment therefor
or (iii) any termination of this Agreement.
12. Termination.
(a) The
Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since the
time of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any development
or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties, earnings, results of
operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course
of business, which individually or in the aggregate, in the sole judgment of the Agent is material and adverse and makes it impractical
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if there has occurred
any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the
Common Stock has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended
or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of
securities settlements or clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium
has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification and Contribution),
Section 11 (Representations and Agreements to Survive Delivery), Section 17 (Governing Law and Time; Waiver of
Jury Trial) and Section 18 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
If the Agent elects to terminate this Agreement as provided in this Section 12(a), the Agent shall provide the required notice
as specified in Section 13 (Notices).
(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(c) The
Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon the issuance and sale of all of
the Placement Shares through the Agent on the terms and subject to the conditions set forth herein; provided that the provisions of Section 8,
Section 10, Section 11, Section 17 and Section 18 hereof shall remain in full force and
effect notwithstanding such termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), (c), or (d) above
or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be
deemed to provide that Section 8, Section 10, Section 11, Section 17 and Section 18
shall remain in full force and effect.
(f) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall settle
in accordance with the provisions of this Agreement.
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Capital Markets
Facsimile: (000)
000-0000
Email: XXXxxxxxxxxxXxxxxxXxxxxxxx@xxxxxx.xxx
and:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General
Counsel
Facsimile: (000)
000-0000
Email: #xxxxx-XXX@xxxxxx.xxx
with a copy to:
Xxxxxx & Xxxxxxx LLP
00000
Xxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Email: xxxxxxx.xxxxxx@xx.xxx
and if to the Company,
shall be delivered to:
Verastem, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Email: xxxxxxx@xxxxxxxx.xxx
with a copy to:
Ropes & Xxxx LLP
Prudential Tower
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Email: xxxxx.xxxxxxx@xxxxxxxxx.xxx
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with
an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) by Electronic Notice as set forth in the next paragraph, (iii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier or (iv) on the Business Day actually received if deposited in the U.S.
mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business
Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to
the electronic mail address specified in this Section 13. Electronic Notice shall be deemed received at the time the party
sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and
shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall
be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective successors
and the affiliates, controlling persons, officers and directors referred to in Section 10 hereof. References to any of the
parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party; provided,
however, that the Agent may assign its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s
consent so long as such affiliate is a registered broker-dealer and Agent provides advance notice of such assignment to the Company.
15. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to
take into account any stock split, stock dividend or similar event effected with respect to the Placement Shares.
16. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may
be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof
shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver by a party shall arise in the
absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile or electronic
transmission.
20. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein to any
law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority shall be deemed to refer to such
law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority as amended, reenacted, supplemented
or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated thereunder.
21. Permitted
Free Writing Prospectuses.
The Company represents, warrants
and agrees that, unless it obtains the prior consent of the Agent, which consent shall not be unreasonably withheld, conditioned or delayed,
and the Agent represents, warrants and agrees that, unless it obtains the prior consent of the Company, which consent shall not be unreasonably
withheld, conditioned or delayed, it has not made and will not make any offer relating to the Placement Shares that would constitute an
Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by the Agent or by the Company, as the case may
be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants
that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes of clarity,
the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit 21 hereto are Permitted Free Writing
Prospectuses.
22. Absence
of Fiduciary Relationship.
The Company acknowledges and
agrees that:
(a) the
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not the Agent has advised or is advising the Company on other matters, and the Agent has no obligation to the Company with
respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither
the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those
of the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of fiduciary duty
or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent and
its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of
Company, other than in respect of the Agent’s obligations under this Agreement and to keep information provided by the Company to
the Agent and the Agent's counsel confidential to the extent not otherwise publicly-available.
23. Definitions.
As used in this Agreement,
the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each
Settlement Date.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering
that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.
“Rule 164,” “Rule 172,”
“Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities
Act Regulations.
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement
or the Prospectus, as the case may be. For the purposes of clarity, any financial information that is furnished by the Company shall not
be deemed incorporated by reference in the Registration Statement or the Prospectus.
All references in this Agreement
to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to XXXXX; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include
the copy thereof filed with the Commission pursuant to XXXXX; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with
any offering, sale or private placement of any Placement Shares by the Agent outside of the United States.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and the Agent.
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Very truly yours, |
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VERASTEM, Inc.
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
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Title: Chief Financial Officer |
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ACCEPTED as of the date first-above written: |
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CANTOR XXXXXXXXXX & CO. |
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By: |
/s/ Xxxx Xxxxx |
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Name:
Xxxx Xxxxx |
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Title: Senior Managing Director, Global Head of Investment Banking |
signature
page to verastem, inc. – sales agreement
SCHEDULE 1
FORM OF PLACEMENT NOTICE
| From: | Verastem, Inc. |
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| To: | Cantor Xxxxxxxxxx & Co.
Attention: _____________________ |
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| Subject: | Placement
Notice |
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| Date: | [•],
202[•] |
Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Verastem, Inc., a Delaware corporation (the “Company”),
and Cantor Xxxxxxxxxx & Co. (“Agent”), dated August 2, 2021, the Company hereby requests that
the Agent sell up to ____________ of the Company’s Common Stock, par value $0.0001 per share, at a minimum market price of $_______
per share, during the time period beginning [month, day, time] and ending [month, day, time].
Verastem, Inc.
[Name, Title]
cc: [other
Verastem notice parties]
SCHEDULE 2
Compensation
The Company shall pay to the
Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount up to 3.0% of the aggregate gross proceeds from
each sale of Placement Shares.
SCHEDULE 3
Notice Parties
The Company
Xxx Xxxxxx (xxxxxxx@xxxxxxxx.xxx)
Xxxxxx Xxxxxxx (xxxxxxxx@xxxxxxxx.xxx)
Xxx Xxxxxxxxx (xxxxxxxxxx@xxxxxxxx.xxx)
Xxxxx Xxxxxxx (xxxxx.xxxxxxx@xxxxxxxxx.xxx)
The Agent
Xxxxxx Xxxxxxx (xxxxxxxx@xxxxxx.xxx)
With copies to:
XXXxxxxxxxxxXxxxxxXxxxxxxx@xxxxxx.xxx
SCHEDULE 4
Subsidiaries
Incorporated by reference to Exhibit 21 of the Company’s
most recently filed Annual Report on Form 10-K.
EXHIBIT 7(l)
Form of Representation Date Certificate
The undersigned, the duly qualified and elected
,
of Verastem, Inc., a Delaware corporation (the “Company”), does hereby certify in such capacity and on behalf
of the Company, pursuant to Section 7(l) of the Sales Agreement, dated August 2, 2021 (the “Sales Agreement”),
between the Company and Cantor Xxxxxxxxxx & Co., that to the best of the knowledge of the undersigned:
(i) The representations and warranties of
the Company in Section 6 of the Sales Agreement (A) to the extent such representations and warranties are subject to
qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct on and as of
the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and
warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations
and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof
as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those
representations and warranties that speak solely as of a specific date and which were true and correct as of such date; provided, however,
that in the case of clauses (A) and (B), such representations and warranties also shall be qualified by the disclosure included or
incorporated by reference in the Registration Statement and Prospectus; and
(ii) The Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.
Capitalized terms used herein without definition
shall have the meanings given to such terms in the Sales Agreement.
EXHIBIT 21
Permitted Free Writing Prospectus
None.