Exhibit 1.1
2,222,222 Shares
CYTOSORBENTS CORPORATION
Common Stock
UNDERWRITING AGREEMENT
March 30,
2017
Xxxxx
and Company, LLC
As Representative of the several
Underwriters
c/o Cowen and Company, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory.
CytoSorbents Corporation, a Delaware corporation (the “Company”), proposes to sell, pursuant to the
terms of this Underwriting Agreement (this “Agreement”), to the several underwriters named in Schedule
A hereto (the “Underwriters,” or, each, an “Underwriter”), an aggregate
of 2,222,222 shares of its common Stock, $0.001 par value (the “Common Stock”)
of the Company. The aggregate of 2,222,222 shares so proposed to be sold is hereinafter referred
to as the “Firm Stock.” The Company also proposes to sell to the Underwriters, upon the terms and conditions
set forth in Section 3 hereof, up to an additional 333,333 shares of Common Stock (the “Optional
Stock”). The Firm Stock and the Optional Stock are hereinafter collectively referred to as the “Stock.”
Xxxxx and Company, LLC (“Cowen”) is acting as representative of the several Underwriters and in such
capacity is hereinafter referred to as the “Representative.”
2. Representations
and Warranties of the Company
(i) Representations
and Warranties of the Company. The Company represents and warrants to the several Underwriters, as of the date hereof and
as of each Closing Date (as defined below), and agrees with the several Underwriters, that:
(a) Registration
Statement. A registration statement of the Company on Form S-3 (File No. 333-205806) (including all amendments thereto, the
“Initial Registration Statement”) in respect of the Stock has been filed with the Securities and Exchange
Commission (the “Commission”) pursuant to Rule 415 under the Securities Act of 1933, as amended (the
“Securities Act”). The Company meets the requirements for use of Form S-3 under the Securities Act,
and the rules and regulations of the Commission thereunder (the “Rules and Regulations”). The Initial
Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you or made available,
and, excluding exhibits thereto, to you for each of the other Underwriters, have been declared effective by the Commission in
such form and meet the requirements of the Securities Act, and the Rules and Regulations. The proposed offering of the Stock may
be made pursuant to General Instruction I.B.1 of Form S-3. Other than (i) the Initial Registration Statement, (ii) a registration
statement, if any, increasing the size of the offering filed pursuant to Rule 462(b) under the Securities Act and the Rules and
Regulations (a “Rule 462(b) Registration Statement”), (iii) any Preliminary Prospectus (as defined below),
(iv) the Prospectus (as defined below) contemplated by this Agreement to be filed pursuant to Rule 424(b) of the Rules and Regulations
in accordance with Section 4(i)(a) hereof and (v) any Issuer Free Writing Prospectus (as defined below), no other document with
respect to the offer and sale of the Stock has heretofore been filed with the Commission. No stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any,
has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or threatened
by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant
to Rule 424 of the Rules and Regulations is hereinafter called a “Preliminary Prospectus”). The Initial
Registration Statement including all exhibits thereto and including the information contained in the Prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations and deemed by virtue of Rule 430B under the Securities Act to
be part of the Initial Registration Statement at the time it became effective is hereinafter collectively called the “Registration
Statement.” If the Company has filed a Rule 462(b) Registration Statement, then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration Statement. The base prospectus included
in the Initial Registration Statement at the time of effectiveness thereof (the “Base Prospectus”),
as supplemented by the final prospectus supplement relating to the offer and sale of the Stock, in the form filed pursuant to
and within the time limits described in Rule 424(b) under the Rules and Regulations, is hereinafter called the “Prospectus.”
Any reference
herein to the Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein. Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or the Prospectus under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be. Any reference to (i) the Registration Statement shall be deemed
to refer to and include the annual report of the last completed fiscal year of the Company on Form 10-K filed `under Section 13(a)
or 15(d) of the Exchange Act prior to the date hereof and (ii) the effective date of such Registration Statement shall be deemed
to refer to and include the date such Registration Statement became effective and, if later, the date such Form 10-K was so filed.
Any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the date of this Agreement that is incorporated by reference
in the Registration Statement.
(b) General
Disclosure Package. As of the Applicable Time (as defined below) and as of the Closing Date or the Option Closing Date (as
defined below), as the case may be, neither (i) the General Use Free Writing Prospectus(es) (as defined below) issued at or prior
to the Applicable Time, the Pricing Prospectus (as defined below) and the information included on Schedule C hereto, all
considered together (collectively, the “General Disclosure Package”), (ii) any individual Limited Use
Free Writing Prospectus (as defined below), nor (iii) the bona fide electronic roadshow (as defined in Rule 433(h)(5) of the Rules
and Regulations), when considered together with the General Disclosure Package, included or will include any untrue statement of
a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations
or warranties as to information contained in or omitted from the Pricing Prospectus or any Issuer Free Writing Prospectus (as defined
below), in reliance upon, and in conformity with, written information furnished to the Company through the Representative by or
on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriters’
Information (as defined in Section 17). As used in this paragraph (b) and elsewhere in this Agreement:
“Applicable
Time” means 8:00 PM New York time, on the date of this Agreement or such
other time as agreed to by the Company and the Representative.
“Pricing
Prospectus” means the Base Prospectus, as amended and supplemented immediately prior to the Applicable Time, including
any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules
and Regulations relating to the Stock 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) of the Rules and Regulations.
“General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is identified on Schedule B to
this Agreement.
“Limited
Use Free Writing Prospectuses” means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.
(c) No
Stop Orders; No Material Misstatements. No order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus relating to the proposed offering of the Stock has been issued by the Commission, and
no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted or, to the Company’s Knowledge,
threatened by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects
to the requirements of the Securities Act and the Rules and Regulations, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations
or warranties as to information contained in or omitted from any Preliminary Prospectus, in reliance upon, and in conformity with,
written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion
therein, which information the parties hereto agree is limited to the Underwriters’ Information.
(d) Registration
Statement and Prospectus Contents. At the respective times the Registration Statement and any amendments thereto became or
become effective as to the Underwriters and at each Closing Date, the Registration Statement and any amendments thereto conformed
and will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not and
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 the Prospectus and any amendments or supplements thereto, at the time the Prospectus
or any amendment or supplement thereto was issued and at each Closing Date, conformed and will conform in all material respects
to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the foregoing representations and warranties
in this paragraph (d) shall not apply to information contained in or omitted from the Registration Statement or the Prospectus,
or any amendment or supplement thereto, in reliance upon, and in conformity with, written information furnished to the Company
through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information the parties
hereto agree is limited to the Underwriters’ Information. The Prospectus contains or will contain all required information
under Rule 430B.
(e) Issuer
Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Stock or until any earlier date that the Company notified or notifies the Representative
as described in Section 4(f) hereof, did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus, including any
document incorporated by reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded
or modified, or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading provided, however, that the foregoing representations and warranties in this paragraph
(e) shall not apply to information contained in or omitted from the Registration Statement, the Pricing Prospectus or the Prospectus,
or any amendment or supplement thereto, in reliance upon, and in conformity with, written information furnished to the Company
through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information the parties
hereto agree is limited to the Underwriters’ Information.
(f) Documents
Incorporated by Reference. The documents incorporated by reference in the Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and none of such documents contained any untrue statement of a material fact or omitted
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; and any further documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with Commission will conform in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and 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.
(g) Distribution
of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute any offering material
in connection with the offering and sale of the Stock other than any Preliminary Prospectus, the Prospectus and other materials,
if any, permitted under the Securities Act and consistent with Section 4(c) below. The Company will file with the Commission all
Issuer Free Writing Prospectuses (other than a “road show” as described in Rule 433(d)(8) of the Rules and Regulations)
in the time and manner required under Rules 163(b)(2) and 433(d) of the Rules and Regulations.
(h) Not
an Ineligible Issuer. At the time of filing the Initial Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendments thereto, and at the date hereof, the Company was not, and the Company currently is not, an “ineligible
issuer,” as defined in Rule 405 of the Rules and Regulations.
(i) Organization
and Good Standing. The Company and each of its subsidiaries (as defined in Section 15) have been duly organized and are validly
existing as corporations or other legal entities in good standing (or the foreign equivalent thereof) under the laws of their respective
jurisdictions of organization. The Company and each of its subsidiaries are duly qualified to do business and are in good standing
as foreign corporations or other legal entities in each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification and have all power and authority (corporate or other) necessary
to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to
so qualify or have such power or authority would not (i) have, singularly or in the aggregate, a material adverse effect on the
business, properties, management, financial position, stockholders’ equity, results of operations or prospects of the Company
and its subsidiaries taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations
under this Agreement or to consummate any transactions contemplated by this Agreement, the General Disclosure Package or the Prospectus
(any such effect as described in clauses (i) or (ii), a “Material Adverse Effect”). The Company does
not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in
Exhibit 21 to the Registration Statement.
(j) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(k) The
Stock. The Stock to be issued and sold by the Company to the Underwriters hereunder has been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and non-assessable
and will conform to the descriptions thereof in the Registration Statement, the General Disclosure Package and the Prospectus;
and the issuance of the Stock is not subject to any preemptive or similar rights.
(l) Capitalization.
The Company has an authorized capitalization as set forth under the heading “Capitalization” under the column titled
“Actual” in the Pricing Prospectus, and all of the issued shares of capital stock of the Company, have been duly and
validly authorized and issued, are fully paid and non-assessable, have been issued in compliance with federal and state securities
laws, and conform to the description thereof contained in the General Disclosure Package and the Prospectus under the heading “Description
of Capital Stock.” All of the Company’s options, warrants and other rights to purchase or exchange any securities for
shares of the Company’s capital stock have been duly authorized and validly issued and were issued in compliance with federal
and state securities laws. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights
of first refusal or other similar rights to subscribe for or purchase securities of the Company. As of the Applicable Time, there
were no authorized or outstanding shares of capital stock, options, warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those described above or accurately described in the General Disclosure Package.
Since the Applicable Time, the Company has not issued any securities other than Common Stock issued pursuant to the exercise of
warrants or upon the exercise of stock options or other awards outstanding under the Company’s stock option plans, options
or other securities granted or issued pursuant to the Company’s existing equity compensation plans or other plans, and the
issuance of Common Stock pursuant to employee stock purchase plans. The description of the Company’s stock option, stock
bonus and other stock plans or arrangements, and the options or other rights granted thereunder, as described in the General Disclosure
Package and the Prospectus, accurately and fairly present the information required to be shown with respect to such plans, arrangements,
options and rights. The Company does not have a corporate credit rating or debt securities rated by any “nationally recognized
statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations.
(m) Capitalization
of Subsidiaries. All the outstanding shares of capital stock (if any) of each subsidiary of the Company have been duly authorized
and validly issued, are fully paid and nonassessable and, except to the extent set forth in the General Disclosure Package or the
Prospectus, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any
claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.
(n) No
Conflicts. The execution, delivery and performance of this Agreement by the Company, the issue and sale of the Stock by the
Company and the consummation of the transactions contemplated by this Agreement will not (with or without notice or lapse of time
or both) (i) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default or a Debt
Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, encumbrance, security
interest, claim or charge upon any property or assets of the Company or any subsidiary pursuant to, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries
is subject, (ii) result in any violation of the provisions of the charter or by-laws (or analogous governing instruments, as applicable)
of the Company or any of its subsidiaries or (iii) result in the violation of any law, statute, rule, regulation, judgment, order
or decree of any court or governmental or regulatory agency or authority, domestic or foreign, having jurisdiction over the Company
or any of its subsidiaries or any of their properties or assets except, in the case of clauses (i) and (iii) above, for any such
conflict, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. A “Debt Repayment Triggering Event” means any event or condition that gives, or with
the giving of notice or lapse of time would give the holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company of any of its subsidiaries.
(o) No
Consents Required. Except for the registration of the Stock under the Securities Act and applicable state securities laws,
and such consents, approvals, authorizations, orders and registrations or qualifications as may be required by the Financial Industry
Regulatory Authority (“FINRA”) and the Nasdaq Capital Market in connection with the purchase and distribution
of the Stock by the Underwriters and the listing of the Stock on the Nasdaq Capital Market, no consent, approval, authorization
or order of, or filing, qualification or registration (each an “Authorization”) with, any court, governmental
or regulatory agency or authority, foreign or domestic, which has not been made, obtained or taken and is not in full force and
effect, is required for the execution, delivery and performance of this Agreement by the Company, the issuance and sale of the
Stock or the consummation of the transactions contemplated hereby; and no event has occurred that allows or results in, or after
notice or lapse of time or both would allow or result in, revocation, suspension, termination or invalidation of any such Authorization
or any other impairment of the rights of the holder or maker of any such Authorization.
(p) Independent
Auditors. WithumSmith+Xxxxx, PC, who have certified certain financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, and have audited
the Company’s internal control over financial reporting and management’s assessment thereof, is an independent registered
public accounting firm with respect to the Company and its subsidiaries within the meaning of Article 2-01 of Regulation S-X and
the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(q) Financial
Statements. The financial statements, together with the related notes, included or incorporated by reference in the General
Disclosure Package, the Prospectus and in the Registration Statement fairly present, in all material respects, the financial position
and the results of operations and changes in financial position of the Company and its consolidated subsidiaries at the respective
dates or for the respective periods therein specified. Such statements and related notes have been prepared in accordance with
the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis
throughout the periods involved except as may be set forth in the related notes included or incorporated by reference in the General
Disclosure Package. The financial statements, together with the related notes, included or incorporated by reference in the General
Disclosure Package and the Prospectus comply in all material respects with Regulation S-X. No other financial statements or supporting
schedules or exhibits are required by Regulation S-X to be described, included or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus. The pro forma and pro forma as adjusted financial information and
the related notes included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus
have been properly compiled and prepared in accordance with the applicable requirements of Rule 11-02 of Regulation S-X and present
fairly, in all material respects, the information shown therein, and the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. The
summary and selected financial data included or incorporated by reference in the General Disclosure Package, the Prospectus and
the Registration Statement fairly present, in all material respects, the information shown therein as at the respective dates and
for the respective periods specified and are derived from the consolidated financial statements set forth incorporated by reference
in the Registration Statement, the Pricing Prospectus and the Prospectus and other financial information. All information contained
in the Registration Statement, the General Disclosure Package and the Prospectus regarding “non-GAAP financial measures”
(as defined in Regulation G) complies with Regulation G and Item 10 of Regulations S-K, to the extent applicable.
(r) eXtensible
Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission’s rules and guidelines applicable thereto.
(s) No
Material Adverse Change. Neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the General Disclosure Package, (i) any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or action, order or decree of any court or governmental or regulatory authority, otherwise than as set forth or contemplated in
the General Disclosure Package; (ii) any change in the capital stock (other than the issuance of shares of Common Stock upon exercise
of stock options and warrants described as outstanding in, and the grant of options and awards under the Company’s existing
equity incentive plans described in, the Registration statement, the General Disclosure Package and the Prospectus) or long-term
debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid
or made by the Company on any class of capital stock, or any material adverse changes, or any development involving a prospective
material adverse change, in or affecting the business, properties, assets, general affairs, management, financial position, prospects,
stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the General Disclosure Package.
(t)
Legal Proceedings. Except as set forth in the General Disclosure Package, there is no legal or governmental proceeding to
which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries
is the subject, including any proceeding before the United States Food and Drug Administration of the U.S. Department of Health
and Human Services (the “FDA”) or comparable federal, state, local or foreign governmental authorities
(it being understood that the interaction between the Company and the FDA and such comparable governmental authorities relating
to the clinical development and product approval process shall not be deemed proceedings for purposes of this representation),
which is required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or a document
incorporated by reference therein and is not described therein, or which, singularly or in the aggregate, if determined adversely
to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect; and no such proceedings
are threatened or, to the Company’s knowledge after reasonable investigation and due diligence inquiry (“Knowledge”),
contemplated by governmental or regulatory authorities or threatened by others. The Company is in compliance with all federal,
state, local and foreign laws, regulations, orders and decrees currently applicable to its business as prescribed by the FDA, or
any other federal, state or foreign agencies or bodies engaged in the regulation of medical devices, except where noncompliance
would not, singly or in the aggregate, have a Material Adverse Effect. All preclinical and clinical studies conducted by or on
behalf of the Company to support approval for commercialization of the Company’s products have been conducted by the Company,
or to the Company’s Knowledge by third parties, in compliance with all applicable federal, state or foreign laws, rules,
orders and regulations, except for such failure or failures to be in compliance that would not reasonably be expected to have,
singly or in the aggregate, a Material Adverse Effect.
(u) No
Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws (or analogous
governing instrument, as applicable), (ii) in default in any respect, and no event has occurred which, 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, lease or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject or (iii) in violation in any respect of any law, ordinance,
governmental rule, regulation or court order, decree or judgment to which it or its property or assets may be subject (including,
without limitation, those administered by the FDA or by any foreign, federal, state or local governmental or regulatory authority
performing functions similar to those performed by the FDA) except, in the case of clauses (ii) and (iii) above, for any such violation
or default that would not reasonably be expected to have, singularly or in the aggregate, have a Material Adverse Effect.
(v) Licenses
or Permits; Regulatory Compliance. The Company and each of its subsidiaries possess all licenses, certificates, authorizations
and permits issued by, and have made all declarations and filings with, the appropriate local, state, federal or foreign governmental
or regulatory agencies or bodies including, without limitation, those administered by the FDA or by any foreign, federal, state
or local governmental or regulatory authority performing functions similar to those performed by the FDA) that are required for
the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration
Statement, General Disclosure Package and the Prospectus (collectively, the “Governmental Permits”) except
where any failures to possess or make the same would not, singularly or in the aggregate, have a Material Adverse Effect. The Company
and its subsidiaries are in compliance, in all material respects, with all such Governmental Permits; all such Governmental Permits
are valid and in full force and effect, except where the validity or failure to be in full force and effect would not, singularly
or in the aggregate, have a Material Adverse Effect. Neither the Company nor any subsidiary has received notification of any revocation,
modification, suspension, termination or invalidation (or proceedings related thereto) of any such Governmental Permit and the
Company has no reason to believe that any such Governmental Permit will not be renewed. The Company, its subsidiaries, and to the
Company’s Knowledge, its directors, officers, employees and agents, are and have been in compliance in all material respects
with applicable federal, state, local and foreign health care regulatory laws, rules, and regulations, including without limitation,
laws related to fraud and abuse, payment transparency, and privacy and security of protected health information (collectively,
“Health Care Laws”). The Company has not received any notice of any claim, action, suit, proceeding,
hearing, enforcement, investigation, arbitration or other action from any court, arbitrator or governmental or regulatory authority
or third party alleging or asserting that the Company or its personnel has violated or otherwise is in non-compliance with any
Health Care Laws, nor, to the Company’s Knowledge, have any such claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action been threatened. The Company is not a party to any corporate integrity agreements, monitoring agreements,
consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory authority. In addition,
none of the Company, its subsidiaries or any of their respective directors, officers or employees is or, has been debarred, suspended
or excluded, or has been convicted of any crime or, to the Knowledge of the Company or its subsidiaries, engaged in any conduct
that would result in a debarment, suspension or exclusion from any federal or state government health care program or human clinical
research, or to the Knowledge of the Company or its subsidiaries, is subject to any inquiry, investigation, proceeding, or other
similar action by a governmental authority that could reasonably be expected to result in any such debarment, suspension, or exclusion.
(w) Regulatory
Matters. The studies, tests and preclinical or clinical trials conducted by or on behalf of the Company that are described
in the General Disclosure Package and the Prospectus (the “Company Studies and Trials”) were and, if
still pending, are being, conducted in all material respects in accordance with experimental protocols, procedures and controls
pursuant to, where applicable, standards established by applicable law (e.g., Good Clinical Practice); the descriptions of the
results of the Company Studies and Trials contained, or incorporated by reference, in the Registration Statement, the General Disclosure
Package and Prospectus are accurate in all material respects; the Company has no Knowledge of any other studies or trials not described
in the General Disclosure Package and the Prospectus, the results of which are inconsistent with or call in question the results
described or referred to in the General Disclosure Package and the Prospectus; and the Company has not received any notices or
correspondence from the FDA or any foreign, state or local governmental authority exercising comparable authority requiring the
termination, suspension or material modification of any Company Studies or Trials that termination, suspension or material modification
would reasonably be expected to have a Material Adverse Effect and, to the Company’s Knowledge, there are no reasonable grounds
for the same. The Company has obtained (or caused to be obtained) informed consent by or on behalf of each human subject who participated
in the Company Studies and Trials. In using or disclosing patient information received by the Company in connection with the Company
Studies and Trials, the Company has complied in all material respects with all laws and regulatory rules or requirements that are
applicable to its conduct of the Company Studies and Trials. To the Company’s Knowledge, none of the Company Studies and
Trials involved any investigator who has been disqualified as a clinical investigator or has been found by the FDA to have engaged
in scientific misconduct. To the Company’s Knowledge, the manufacturing facilities and operations of its suppliers are operated
in compliance in all material respects with all applicable statutes, rules, regulations and policies of the FDA and comparable
governmental authorities outside of the United States to which the Company is subject.
(x) Investment
Company Act. Neither the Company nor any of its subsidiaries is or, after giving effect to the offering of the Stock and the
application of the net proceeds thereof as described in the General Disclosure Package and the Prospectus, will be required to
register as an “investment company” or an entity “controlled” by an “investment company” within
the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(y)
No Stabilization. Neither the Company nor, to the Company’s Knowledge, any of its officers, directors or affiliates
has taken or will take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security
of the Company, or which caused or resulted in, or which might in the future reasonably be expected to cause or result in, stabilization
or manipulation of the price of any security of the Company.
(z) Intellectual
Property. Except as disclosed in the Registration Statement, the General Disclosure Package 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, copyright registrations, licenses, inventions,
trade secrets, technology, Internet domain names, know-how and other intellectual property (collectively, the “Intellectual
Property”), necessary for the conduct of their respective businesses as now conducted, and as proposed to be conducted
as described in the Registration Statement and the Prospectus, 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. To the Company’s knowledge, the Company’s and its respective subsidiaries’ businesses as now conducted
and as proposed to be conducted as described in the Registration Statement, the General Disclosure Package and the Prospectus do
not and will not give rise to any infringement of, any misappropriation of, or other violation of, any valid and enforceable Intellectual
Property Rights of any other person. Except as disclosed in the Registration Statement and the Prospectus (i) there are no rights
of third parties to any such Intellectual Property owned by the Company and its subsidiaries, including no liens, security interests,
or other encumbrances; (ii) to the Company’s Knowledge, there is no infringement by third parties of any such Intellectual
Property owned by the Company and its Subsidiaries; (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, enforceability, or scope of any such Intellectual Property, including no interference, derivation, opposition,
reexamination, or other government proceeding and the Company is unaware of any facts which could form a reasonable basis for any
such action, suit, proceeding or claim; (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, and the Company is unaware of any facts which could form a reasonable basis
for any such action, suit, proceeding or claim; (vi) to the Company’s Knowledge, there are no material defects in any of
the patents or patent applications disclosed in the Registration Statement, the General Disclosure Package and the Prospectus as
being owned by the Company and its Subsidiaries; (vii) the Company and its Subsidiaries have complied with the terms of each agreement
pursuant to which Intellectual Property has been licensed to the Company or such Subsidiary, and all such agreements are in full
force and effect, except, in the case of any of clauses (i)-(vii) above, for any such infringement by third parties or any such
pending or threatened suit, action, proceeding or claim as would not, individually or in the aggregate, result in a Material Adverse
Effect; (viii) the Company and its subsidiaries have taken all reasonable steps to protect, maintain and safeguard their Intellectual
Property, including the execution of appropriate nondisclosure, confidentiality agreements and invention assignment agreements
and invention assignments with their employees, and to the Company’s Knowledge, no employee of the Company is in or has been
in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure agreement, or any restrictive covenant to or with a former employer where
the basis of such violation relates to such employee’s employment with the Company; and (ix) to the Company’s Knowledge,
the duty of candor and good faith as required by the United States Patent and Trademark Office during the prosecution of the United
States patents and patent applications included in the Intellectual Property owned by the Company and its subsidiaries have been
complied with, and in all foreign offices having similar requirements, all such requirements have been complied with.
(aa) Title
to Real and Personal Property. The Company and each of its subsidiaries have good and marketable title in and (in the case
of real property) to, or have valid and marketable rights to lease or otherwise use, all items of real or personal property which
are material to the business of the Company and its subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances,
security interests, claims and defects that (i) do not, singularly or in the aggregate, materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries
or (ii) could not reasonably be expected, singularly or in the aggregate, to have a Material Adverse Effect.
(bb) No
Labor Dispute. There is (A) no significant unfair labor practice complaint pending against the Company, or any of its subsidiaries,
nor to the Company’s Knowledge, threatened against it or any of its subsidiaries, before the National Labor Relations Board,
any state or local labor relation board or any foreign labor relations board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement is so pending against the Company or any of its subsidiaries,
or, to the Company’s Knowledge, threatened against it and (B) no labor disturbance by or dispute with, employees of the Company
or any of its subsidiaries exists or, to the Company’s Knowledge, is contemplated or threatened, and the Company is not aware
of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, manufacturers,
customers or contractors, that could reasonably be expected, singularly or in the aggregate, to have a Material Adverse Effect.
The Company is not aware that any key employee or significant group of employees of the Company or any subsidiary plans to terminate
employment with the Company or any such subsidiary.
(cc) Compliance
with ERISA. No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”)) or “accumulated
funding deficiency” (as defined in Section 302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA (other
than events with respect to which the thirty (30)-day notice requirement under Section 4043 of ERISA has been waived) has occurred
or could reasonably be expected to occur with respect to any employee benefit plan of the Company or any of its subsidiaries which
could, singularly or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each employee benefit plan of
the Company or any of its subsidiaries is in compliance in all material respects with applicable law, including ERISA and the Code.
The Company and its subsidiaries have not incurred and could not reasonably be expected to incur liability under Title IV of ERISA
with respect to the termination of, or withdrawal from, any pension plan (as defined in ERISA). Each pension plan for which the
Company or any of its subsidiaries would have any liability that is intended to be qualified under Section 401(a) of the Code is
so qualified, and nothing has occurred, whether by action or by failure to act, which could, singularly or in the aggregate, reasonably
be expected to cause the loss of such qualification.
(dd) Environmental
Laws and Hazardous Materials. The Company and its subsidiaries are in compliance with all foreign, federal, state and local
rules, laws and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and
protection of health and safety or the environment which are applicable to their businesses (the “Environmental Laws”).
There has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of
any kind of toxic or other wastes or other hazardous substances by, due to, or caused by the Company or any of its subsidiaries
(or, to the Company’s Knowledge, any other entity for whose acts or omissions the Company or any of its subsidiaries is or
may otherwise be liable) upon any of the property now or previously owned or leased by the Company or any of its subsidiaries,
or upon any other property, in violation of any law, statute, ordinance, rule, regulation, order, judgment, decree or permit or
which would, under any law, statute, ordinance, rule (including rule of common law), regulation, order, judgment, decree or permit,
give rise to any liability; and there has been no disposal, discharge, emission or other release of any kind onto such property
or into the environment surrounding such property of any toxic or other wastes or other hazardous substances with respect to which
the Company or any of its subsidiaries has knowledge.
(ee) Taxes.
The Company and its subsidiaries each (i) have timely filed all necessary federal, state, local and foreign tax returns, and all
such returns were true, complete and correct, (ii) have paid all federal, state, local and foreign taxes due and payable, for which
it is liable, including, without limitation, all sales and use taxes and all taxes which the Company or any of its subsidiaries
is obligated to withhold from amounts owing to employees, creditors and third parties, and (iii) do not have any tax deficiency
or claims outstanding or assessed or, to its Knowledge, proposed against any of them, except those, in each of the cases described
in clauses (i), (ii) and (iii) above, that would not, singularly or in the aggregate, have a Material Adverse Effect.
(ff) Insurance.
The Company and each of its subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of their respective properties. Neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not
reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received written
notice from any insurer, agent of such insurer or the broker of the Company or any of its subsidiaries that any material capital
improvements or any other material expenditures (other than premium payments) are required or necessary to be made in order to
continue such insurance.
(gg) Accounting
Controls. The Company and each of its subsidiaries maintains a system of “internal control over financial reporting”
(as such term is defined in Rule 13a-15(f) of the General Rules and Regulations under the Exchange Act (the “Exchange
Act Rules”)) that complies with the requirements of the Exchange Act and has been designed by their respective principal
executive and principal financial officers, or under their supervision, to provide reasonable assurances 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 GAAP and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences
and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
fairly presents the Commission’s rules and guidelines applicable thereto. The Company’s internal control over financial
reporting is effective. Except as described in the General Disclosure Package, since the end of the Company’s most recent
audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial reporting (whether
or not remediated) and (B) 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. The Company’s
internal control over financial reporting is overseen by the Audit Committee of the Board of Directors of the Company (the “Audit
Committee”) in accordance with the Exchange Act Rules. The Company has not publicly disclosed or reported to the
Audit Committee or to the Board a material weakness, change in internal control over financial reporting or fraud involving management
or other employees who have a significant role in the internal control over financial reporting (each an “Internal
Control Event”) or any material violation of, or failure to comply in all material respects with, U.S. federal securities
laws.
(hh) Disclosure
Controls. The Company and its subsidiaries maintain disclosure controls and procedures (as such is defined in Rule 13a-15(e)
of the Exchange Act Rules) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that information required to be disclosed by the Company and its subsidiaries in reports that they file
or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s
rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to
the Company’s management to allow timely decisions regarding disclosures. The Company and its subsidiaries have conducted
evaluations of the effectiveness of their disclosure controls as required by Rule 13a-15 of the Exchange Act.
(ii) Minute Books. The minute books of the Company and each of its subsidiaries that would be a “significant subsidiary”
within the meaning of Rule 1-02(w) of Regulation S-X (such a significant subsidiary of the Company, a “Significant
Subsidiary”) have been made available to the Underwriters and counsel for the Underwriters, and such books (i) contain
a complete summary in all material respects of all meetings and actions of the board of directors (including each board committee)
and stockholders of the Company (or analogous governing bodies and interest holders, as applicable), and each of its Significant
Subsidiaries since the time of its respective incorporation or organization through the date of the latest meeting and action,
and (ii) accurately in all material respects reflect all transactions referred to in such minutes.
(jj) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries
on the one hand, and the directors, officers, stockholders (or analogous interest holders), customers or suppliers of the Company
or any of its affiliates on the other hand, which is required to be described in the General Disclosure Package and the Prospectus
or a document incorporated by reference therein and which is not so described.
(kk) No
Registration Rights. No person or entity has the right to require registration of shares of Common Stock or other securities
of the Company or any of its subsidiaries because of the filing or effectiveness of the Registration Statement or otherwise, except
for persons and entities who have expressly waived such right in writing or who have been given timely and proper written notice
and have failed to exercise such right within the time or times required under the terms and conditions of such right. Except as
described in the General Disclosure Package, there are no persons with registration rights or similar rights to have any securities
registered by the Company or any of its subsidiaries under the Securities Act.
(ll) Margin
Rules. The application of the proceeds received by the Company from the issuance, sale and delivery of the Stock as described
in the General Disclosure Package and the Prospectus will not 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.
(mm) No
Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries
or the Underwriters for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of
the Stock or any transaction contemplated by this Agreement, the Registration Statement, the General Disclosure Package or the
Prospectus.
(nn) No
Restrictions on Subsidiaries. Except as described in the Registration Statement, General Disclosure Package and the Prospectus,
no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which
it is a party or is subject, 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 properties or assets to the Company or any other subsidiary of the Company.
(oo) PFIC. The Company is not a Passive Foreign Investment Company (“PFIC”) within the meaning of Section
1296 of the United States Internal Revenue Code of 1966, and the Company is not likely to become a PFIC.
(pp) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in either the General Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(qq) Listing.
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d)
of the Exchange Act. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and is listed on the
Nasdaq Capital Market (the “Exchange”), and the Company has taken no action designed to, or reasonably
likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock
from the Exchange, nor has the Company received any notification that the Commission or FINRA is contemplating terminating such
registration or listing.
(rr) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the company or, to the Company’s Knowledge, any of the Company’s
officers or directors, in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402
related to loans and Sections 302 and 906 related to certifications.
(ss) No
Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the Company’s Knowledge, any director, officer,
employee, agent or affiliate of the Company or any subsidiary, has (i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii) made any direct or indirect unlawful payment to foreign
or domestic government officials or employees, political parties or campaigns, political party officials, or candidates for political
office from corporate funds, (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977,
as amended, or any applicable anti-corruption laws, rules, or regulations of any other jurisdiction in which the Company or any
subsidiary conducts business, or (iv) made any other unlawful bribe, rebate, payoff, influence payment, kickback, or other unlawful
payment to any person.
(tt) Statistical
and Market Data. The statistical and market related data included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be reliable
and accurate, and such data agree with the sources from which they are derived.
(uu) Compliance
with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in
compliance with all applicable financial recordkeeping and reporting requirements, including those of the U.S. Bank Secrecy Act,
as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and
its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”),
and no action, suit or proceeding by or before any court or governmental agency, authority, body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(vv) Compliance
with OFAC.
| (A) | Neither the Company nor any of its subsidiaries, nor, to the Company’s Knowledge, any director,
officer, employee, agent or affiliate of the Company or any of its subsidiaries, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is: (i) the subject of any sanctions administered or enforced by the U.S. Department
of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”),
the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”), nor (ii) located, organized or resident in a country
or territory that is the subject of a U.S. government embargo (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria,
and the Crimea). |
| (B) | Unless authorized by relevant government authorities, the Company will not, directly or indirectly,
use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other Person to fund or facilitate any activities or business of or with any Person that, at the time of such funding
or facilitation is the subject of Sanctions, or in any country or territory that, at the time of such funding or facilitation,
is the subject of a U.S. government embargo; or 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). |
| (C) | For the past five (5) years, the Company and its subsidiaries have not knowingly engaged in, are
not now knowingly engaged in, and will not engage in, any direct or indirect dealings or transactions with any Person that at the
time of the dealing or transaction is or was the subject of Sanctions or any country or territory that, at the time of the dealing
or transaction is or was the subject of a U.S. government embargo. |
(ww) No
Associated Persons; FINRA Matters. Neither the Company nor any of its affiliates (within the meaning of FINRA Rule 5121(f)(1))
directly or indirectly controls, is controlled by, or is under common control with, or is an associated person (within the meaning
of Article I, Section 1(ee) of the By-laws of FINRA) of, any member firm of FINRA. In accordance with FINRA Conduct Rule 5110(b)(7)(C)(i),
the Stock has been registered with the Commission on For S-3 under the Securities Act pursuant to the standards for such Form S-3
in effect prior to October 21, 1992.
Any certificate signed by or on behalf
of the Company and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
3. Purchase,
Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth the Company agrees to sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Company the respective numbers of shares of Firm Stock set forth opposite the names
of the Underwriters in Schedule A hereto.
The purchase price
per share to be paid by the Underwriters to the Company for the Stock will be $4.2075 per
share (the “Purchase Price”).
The Company will deliver
the Stock to the Representative for the respective accounts of the several Underwriters, through the facilities of The Depository
Trust Company issued in such names and in such denominations as the Representative may direct by notice in writing to the Company
given at or prior to 12:00 Noon, New York time, on the second (2nd) full business day preceding the Closing Date against
payment of the aggregate Purchase Price therefor by wire transfer in federal (same day) funds to an account at a bank specified
by the Company payable to the order of the Company. Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligations of each Underwriter hereunder. The time and date of the delivery
and closing shall be at 10:00 A.M., New York time, on April 5, 2017, in accordance with
Rule 15c6-1 of the Exchange Act, or at such time as the Representative and Company mutually agree. The time and date of such payment
and delivery are herein referred to as the “Closing Date.” The Closing Date and the location of delivery
of, and the form of payment for, the Stock may be varied by agreement between the Company and the Representative.
For the purpose of
covering any over-allotments in connection with the distribution and sale of the Firm Stock as contemplated by the Prospectus,
the Underwriters may purchase all or less than all of the Optional Stock. The price per share to be paid for the Optional Stock
shall be the Purchase Price. The Company agrees to sell to the Underwriters the number of shares of Optional Stock specified in
the written notice delivered by the Representative to the Company described below and the Underwriters agree, severally and not
jointly, to purchase such shares of Optional Stock. Such shares of Optional Stock shall be purchased from the Company and for the
account of each Underwriter in the same proportion as the number of shares of Firm Stock set forth opposite such Underwriter’s
name on Schedule A bears to the total number of shares of Firm Stock (subject to adjustment by the Representative to eliminate
fractions). The option granted hereby may be exercised as to all or any part of the Optional Stock at any time, and from time to
time, provided however, that notice of such exercise must be delivered not more than thirty (30) days subsequent to the
date of this Agreement. No Optional Stock shall be sold and delivered unless the Firm Stock previously has been, or simultaneously
is, sold and delivered. The right to purchase the Optional Stock or any portion thereof may be surrendered and terminated at any
time upon notice by the Representative to the Company.
The option granted
hereby shall be exercised by written notice being given to the Company by the Representative setting forth the number of shares
of the Optional Stock to be purchased by the Underwriters and the date and time for delivery of and payment for the Optional Stock.
Each date and time for delivery of and payment for the Optional Stock (which may be the Closing Date, but not earlier) is herein
called the “Option Closing Date” and shall in no event be earlier than two (2) business days nor later
than five (5) business days after written notice is given. The Option Closing Date and the Closing Date are herein called the “Closing
Dates.”
The Company will deliver
the Optional Stock to the Representative for the respective accounts of the several Underwriters through the facilities of The
Depository Trust Company issued in such names and in such denominations as the Representative may direct by notice in writing to
the Company given at or prior to 12:00 Noon, New York time, on the second (2nd) full business preceeding the Option
Closing Date against payment of the aggregate Purcase Price therefor by wire transfer in Federal (same day) funds to an account
at a bank specified by the Company payable to the order of the Company. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the obligations of each Underwriter hereunder. The Option
Closing Date and the location of delivery of, and the form of payment for, the Optional Stock may be varied by agreement between
the Company and the Representative.
The several Underwriters
propose to offer the Stock for sale upon the terms and conditions set forth in the Prospectus.
4. Further
Agreements Of The Company. The Company agrees with the several Underwriters:
(a) Required
Filings; Amendments or Supplements; Notice to the Representative. To prepare the Rule 462(b) Registration Statement, if necessary,
in a form approved by the Representative and file such Rule 462(b) Registration Statement with the Commission by 10:00 P.M., New
York time, on the date hereof, and the Company shall at the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the
Rules and Regulations; to prepare the Prospectus in a form approved by the Representative containing information previously omitted
at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C of the Rules and Regulations
and to file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the second (2nd) business
day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by the Securities
Act; to notify the Representative immediately of the Company’s intention to file or prepare any supplement or amendment to
the Registration Statement or to the Prospectus and to make no amendment or supplement to the Registration Statement, the General
Disclosure Package or to the Prospectus to which the Representative shall reasonably object by notice to the Company after a reasonable
period to review; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to the General Disclosure Package or the Prospectus
or any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish the Underwriters with copies thereof;
to file promptly all material required to be filed by the Company with the Commission pursuant to Rules 433(d) or 163(b)(2) of
the Rules and Regulations, as the case may be; to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) of the Rules and Regulations) is required in connection with the offering or sale of the Stock; to advise the Representative,
promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus, the Prospectus, of the suspension of the qualification
of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing of the Registration Statement, the General Disclosure Package
or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or suspending any such
qualification, and promptly to use its best efforts to obtain the withdrawal of such order.
(b) Permitted
Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior written consent of the Representative,
and each Underwriter represents and agrees that, unless it obtains the prior written consent of the Company and the Representative,
it has not made and will not make any offer relating to the Stock that would constitute a “free writing prospectus”
as defined in Rule 405 of the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided
that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing
Prospectus(es) included in Schedule B hereto. The Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, comply with the requirements of Rules 164 and 433 of the
Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with
the Commission, legending and record keeping and will not take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) of the Rules and Regulations a free writing prospectus prepared by
or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(c) Ongoing
Compliance. If at any time prior to the date when a prospectus relating to the Stock is required to be delivered (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act) any event occurs or condition exists as a result of which
the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances under which they were made when the Prospectus is
delivered (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations), not misleading, or if it is
necessary at any time to amend or supplement the Registration Statement or the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, that the Company will
promptly notify the Representative thereof and upon their request will prepare an appropriate amendment or supplement or upon their
request make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act in form and substance satisfactory to
the Representative which will correct such statement or omission or effect such compliance and will use its reasonable best efforts
to have any amendment to the Registration Statement declared effective as soon as possible. The Company will furnish without charge
to each Underwriter and to any dealer in securities as many copies as the Representative may from time to time reasonably request
of such amendment or supplement. In case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) of the Rules and Regulations) relating to the Stock, the Company upon the request of the Representative will
prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section
10(a)(3) of the Securities Act and deliver to such Underwriter as many copies as such Underwriter may request of such amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) Amendment
to General Disclosure Package. If the General Disclosure Package is being used to solicit offers to buy the Stock at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment
of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure
Package in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, or to make
the statements therein not conflict with the information contained or incorporated by reference in the Registration Statement then
on file and not superseded or modified, or if it is necessary at any time to amend or supplement the General Disclosure Package
to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the
Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file
with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure
Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances then prevailing,
be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with
law.
(e) Amendment
to Issuer Free Writing Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or will conflict with the information
contained in the Registration Statement, Pricing Prospectus or Prospectus, including any document incorporated by reference therein
and any prospectus supplement deemed to be a part thereof and not superseded or modified or included or would include an untrue
statement of a material fact or omitted or would omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company
has promptly notified or will promptly notify the Representative so that any use of the Issuer Free Writing Prospectus may cease
until it is amended or supplemented and has promptly amended or will promptly amend or supplement, at its own expense, such Issuer
Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing sentence does not apply
to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon, and in conformity with, written information
furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which
information the parties hereto agree is limited to the Underwriters’ Information.
(f) Delivery
of Registration Statement. To the extent not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval
system or any successor system (“XXXXX”), upon the request of the Representative, to furnish promptly
to the Representative and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with
the Commission, and of each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(g) Delivery
of Copies. Upon request of the Representative, to the extent not available on XXXXX, to deliver promptly to the Representative
in New York City such number of the following documents as the Representative shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission (in each case excluding exhibits), (ii) each Preliminary Prospectus,
(iii) any Issuer Free Writing Prospectus, (iv) the Prospectus (the delivery of the documents referred to in clauses (i), (ii),
(iii) and (iv) of this paragraph (g) to be made not later than 10:00 A.M., New York time, on the business day following the execution
and delivery of this Agreement), (v) conformed copies of any amendment to the Registration Statement (excluding exhibits), (vi)
any amendment or supplement to the General Disclosure Package or the Prospectus (the delivery of the documents referred to in clauses
(v) and (vi) of this paragraph (g) to be made not later than 10:00 A.M., New York City time, on the business day following the
date of such amendment or supplement) and (vii) any document incorporated by reference in the General Disclosure Package or the
Prospectus (excluding exhibits thereto) (the delivery of the documents referred to in clause (vi) of this paragraph (g) to be made
not later than 10:00 A.M., New York City time, on the business day following the date of such document).
(h) Earnings
Statement. To make generally available to its stockholders as soon as practicable, but in any event not later than sixteen
(16) months after the effective date of the Registration Statement (as defined in Rule 158(c) of the Rules and Regulations), an
earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158).
(i)
Blue Sky Compliance. To take promptly from time to time such actions as the Representative may reasonably request to qualify
the Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Representative
may reasonably designate and to continue such qualifications in effect, and to comply with such laws, for so long as required to
permit the offer and sale of Stock in such jurisdictions; provided that the Company and its subsidiaries shall not be obligated
to (i) qualify as foreign corporations in any jurisdiction in which they are not so qualified, (ii) file a general consent to service
of process in any jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(j) Reports.
Upon request, during the period of five (5) years from the date hereof, to deliver to each of the Underwriters, (i) as soon as
they are available, copies of all reports or other communications (financial or other) furnished to stockholders, and (ii) as soon
as they are available, copies of any reports and financial statements furnished or filed with the Commission or any national securities
exchange on which the Stock is listed. However, so long as the Company is subject to the reporting requirements of either Section
13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on XXXXX, it is not required to furnish
such reports or statements to the Underwriters.
(k) Lock-Up.
During the period commencing on and including the date hereof and ending on and including the ninetieth (90th) day following the
date of this Agreement, (the “Lock-Up Period”) the Company will not, without the prior written consent
of the Representative (which consent may be withheld at the sole discretion of the Representative), directly or indirectly offer,
sell (including, without limitation, any short sale), assign, transfer, pledge, contract to sell, establish an open “put
equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of, or announce the
offering of, or file any registration statement under the Securities Act in respect of, any Common Stock, options, rights or warrants
to acquire Common Stock or securities exchangeable or exercisable for or convertible into Common Stock (other than is contemplated
by this Agreement with respect to the Stock) or publicly announce any intention to do any of the foregoing; provided, however,
that the Company may (i) issue Common Stock and options to purchase Common Stock, shares of Common Stock underlying options granted
and other securities, each pursuant to any director or employee stock option plan, stock ownership plan or dividend reinvestment
plan of the Company in effect on the date hereof and described in the General Disclosure Package; (ii) issue Common Stock pursuant
to the conversion of securities or the exercise of warrants, which securities or warrants are outstanding on the date hereof and
described in the General Disclosure Package; (iii) adopt a new equity incentive plan or amend (or amend and restate, as applicable)
an existing equity incentive plan, and file a registration statement on Form S-8 under the Securities Act to register the offer
and sale of securities to be issued pursuant to such new or amended equity incentive plan, and issue securities pursuant to such
new or amended equity incentive plan (including, without limitation, the issuance of shares of Common Stock upon the exercise of
options or other securities issued pursuant to such new equity incentive plan), provided that (1) such new or amended equity incentive
plan satisfies the transaction requirements of General Instruction A.1 of Form S-8 under the Securities Act and (2) this clause
(iii) shall not be available unless each recipient of shares of Common Stock, or securities exchangeable or exercisable for or
convertible into Common Stock, pursuant to such new or amended equity incentive plan shall be contractually prohibited from selling,
offering, disposing of or otherwise transferring any such shares or securities during the remainder of the Lock-Up Period. The
Company will cause each person and entity listed in Schedule D to furnish to the Representative, prior to the Closing Date,
a “lock-up” agreement, substantially in the form of Exhibit I hereto. In addition, the Company will direct the
transfer agent to place stop transfer restrictions upon any such securities of the Company that are bound by such “lock-up”
agreements.
(l) Delivery
of SEC Correspondence. To supply the Underwriters with copies of all correspondence to and from, and all documents issued to
and by, the Commission in connection with the registration of the Stock under the Securities Act or any of the Registration Statement,
any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto or document incorporated by reference therein.
(m) Press
Releases. Prior to the latest of the Closing Dates, not to issue any press release or other communication directly or indirectly
or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs
or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with
the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative,
unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication
is required by law.
(n) Compliance
with Regulation M. Until the Underwriters shall have notified the Company of the completion of the resale of the Stock, that
the Company will not, and will use its reasonable best efforts to cause its affiliated purchasers (as defined in Regulation M under
the Exchange Act) not to, in violation of Regulation M, either alone or with one or more other persons, bid for or purchase, for
any account in which it or any of its affiliated purchasers has a beneficial interest, any Stock, or attempt to induce any person
to purchase any Stock; and not to, and to use its reasonable best efforts to cause its affiliated purchasers not to, in violation
of Regulation M, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price
of the Stock.
(o) Registrar
and Transfer Agent. To maintain, at its expense, a registrar and transfer agent for the Stock.
(p) Use
of Proceeds. To apply the net proceeds from the sale of the Stock as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus under the heading “Use of Proceeds,” and except as disclosed in the General Disclosure Package,
the Company does not intend to use any of the proceeds from the sale of the Stock hereunder to repay any outstanding debt owed
to any affiliate of any Underwriter.
(q) Exchange
Listing. To use its commercially reasonable efforts to list, subject to notice of issuance, the Stock on the Exchange.
(r) Performance
of Covenants and Satisfaction of Conditions. To use its reasonable best efforts to do and perform all things required to be
done or performed under this Agreement by the Company prior to each Closing Date and to satisfy all conditions precedent to the
delivery of the Stock.
5. Payment
of Expenses. The Company agrees to pay, or reimburse if paid by any Underwriter, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated: (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Stock and any taxes payable in that connection; (b) the costs incident to the registration of the Stock under
the Securities Act; (c) the costs incident to the preparation, printing and distribution of the Registration Statement, the Base
Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package, the Prospectus, any
amendments, supplements and exhibits thereto or any document incorporated by reference therein and the costs of printing, reproducing
and distributing the “Agreement Among Underwriters” between the Representative and the Underwriters, the Master Selected
Dealers’ Agreement, the Underwriters’ Questionnaire, this Agreement and any closing documents by mail, telex or other
means of communications; (d) the fees and expenses (including related fees and expenses of counsel for the Underwriters) incurred
in connection with securing any required review by FINRA of the terms of the sale of the Stock and any filings made with FINRA
up to an aggregate of $10,000; (e) any applicable listing or other fees; (f) the fees and expenses (including related fees and
expenses of counsel to the Underwriters) of qualifying the Stock under the securities laws of the several jurisdictions as provided
in Section 4(i)) and of preparing, printing and distributing wrappers, Blue Sky Memoranda and Legal Investment Surveys; (g) the
legal fees of Xxxxxx LLP, counsel to the Underwriters, in an amount up to $125,000 (not including the amount set forth in clause
(d) herein), (h) all fees and expenses of the registrar and transfer agent of the Stock; (i) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of
the Stock, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show,
expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company, travel and lodging expenses of the officers of the Company
and such consultants, including the cost of any aircraft chartered in connection with the road show, and (j) all other costs and
expenses incurred by the Company incident to the offering of the Stock or the performance of the obligations of the Company under
this Agreement (including, without limitation, the fees and expenses of the Company’s counsel and the Company’s independent
accountants); provided that, except to the extent otherwise provided in this Section 5 and in Sections 10 and 11, the Underwriters
shall pay their own costs and expenses, including the fees and expenses of their counsel (except to the extent explicitly set forth
in the foregoing clauses (d) and (f)), any transfer taxes on the resale of any Stock by them and the expenses of advertising any
offering of the Stock made by the Underwriters.
6. Conditions
of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to
the accuracy, when made and as of the Applicable Time and on each Closing Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof,
to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) Registration
Compliance; No Stop Orders. The Registration Statement has become effective under the Securities Act, and no stop order suspending
the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and
no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the
Commission, and all requests for additional information on the part of the Commission (to be included or incorporated by reference
in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the
Representative; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have
been filed with, the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules
and Regulations and in accordance with Section 4(i)(a), and the Rule 462(b) Registration Statement, if any, shall have become effective
immediately upon its filing with the Commission; and FINRA shall have raised no unresolved objection to the fairness and reasonableness
of the terms of this Agreement or the transactions contemplated hereby.
(b) No
Material Misstatements. None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing
Dates that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the
opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure
Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement
of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is
material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading.
(c) Corporate
Proceedings. All corporate proceedings and other legal matters incident to the authorization, form and validity of each of
this Agreement, the Stock, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus and
the Prospectus and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for
the Underwriters and the Company shall have furnished to such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(d) Opinion
and 10b-5 Statement of Counsel for the Company. DLA Piper LLP (US) shall have furnished to the Representative such counsel’s
written opinion, including 10b-5 Statement, as counsel to the Company, addressed to the Underwriters and dated as of such Closing
Date, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit II hereto.
(e) Opinion
and 10b-5 Statement of Intellectual Property Counsel for the Company. Xxxxxxx, Xxxxxx & Xxxxxx shall have furnished to
the Representative such counsel’s written opinion and 10b-5 Statement, as intellectual property counsel to the Company, addressed
to the Underwriters and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representative, to
the effect set forth in Exhibit III hereto.
(f) Opinion
and 10b-5 Statement of Counsel for the Underwriters. The Representative shall have received from Xxxxxx LLP, counsel for the
Underwriters, such opinion or opinions and 10b-5 Statement, dated as of such Closing Date, with respect to such matters as the
Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling
them to pass upon such matters.
(g) Comfort
Letter. At the time of the execution of this Agreement, the Representative shall have received from WithumSmith+Xxxxx, PC a
letter, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i)
confirming that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the
meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm,
of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial
statements and certain financial information contained or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus.
(h) Bring
Down Comfort. On the effective date of any post-effective amendment to the Registration Statement and on such Closing Date,
the Representative shall have received a letter (the “bring-down letter”) from WithumSmith+Xxxxx, PC
addressed to the Underwriters and dated such Closing Date confirming, as of the date of the bring-down letter (or, with respect
to matters involving changes or developments since the respective dates as of which specified financial information is given in
the General Disclosure Package and the Prospectus, as the case may be, as of a date not more than three (3) business days prior
to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’
“comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter
delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (g) of this Section 6.
(i) Officer’s
Certificate. The Company shall have furnished to the Representative a certificate, dated such Closing Date, of its Chief Executive
Officer, Chairman of the Board or President and its Chief Financial Officer stating in their respective capacities as officers
of the Company on behalf of the Company that (i) no stop order suspending the effectiveness of the Registration Statement (including,
for avoidance of doubt, any Rule 462(b) Registration Statement), or any post-effective amendment thereto, shall be in effect and
no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Commission, (ii) for the period
from and including the date of this Agreement through and including such Closing Date, there has not occurred any Material Adverse
Effect, (iii) to their knowledge, after reasonable investigation, as of such Closing Date, the representations and warranties of
the Company in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such Closing Date, and (iv) there has not been, subsequent to
the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package,
any Material Adverse Effect in the financial position or results of operations of the Company, or any change or development that,
singularly or in the aggregate, would reasonably be expected to involve a Material Adverse Effect, except as set forth in the General
Disclosure Package and the Prospectus.
(j) No
Material Adverse Effect. Since the date of the most recent audited financial statements included in the General Disclosure
Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any of
its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than
as set forth in the General Disclosure Package, and (ii) there shall not have been any change in the capital stock (other than
stock option exercises and stock repurchases in the ordinary course of business and the grant of stock awards under existing equity
plans) or long-term debt of the Company or any of its subsidiaries, or any change, or any development involving a prospective change,
in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations
of the Company and its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any
such case described in clause (i) or (ii) of this paragraph 6(j), is, in the judgment of the Representative, so material and adverse
as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated
in the General Disclosure Package.
(k) No
Legal Impediment to Issuance. No action shall have been taken and no law, statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental or regulatory agency or authority which would prevent the issuance or sale of the
Stock; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction
shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially
materially and adversely affect the business or operations of the Company.
(l) Market
Conditions. Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
(i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or the Exchange,
or trading in securities generally on the New York Stock Exchange, NASDAQ Global Select Market, NASDAQ Global Market, NASDAQ Capital
Market or the NYSE MKT LLC or in the over-the-counter market, or trading in any securities of the Company on any exchange or in
the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for
prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any
other regulatory agency or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal
or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services
in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism,
or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery
of the Stock on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(m) Exchange
Listing. The Company shall have filed a Notification: Listing of Additional shares with The NASDAQ Stock Market LLC (“NASDAQ”)
and shall have received no objection thereto from NASDAQ.
(n) Good
Standing. The Representative shall have received on and as of each Closing Date satisfactory evidence of the good standing
of the Company and its subsidiary, CytoSorbents Medical, Inc., in their respective jurisdictions of organization and their good
standing as foreign entities in such other jurisdictions as the Representative may reasonably request, in each case in writing
or any standard form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(o) Lock
Up Agreements. The Representative shall have received the written agreements, substantially in the form of Exhibit I
hereto, of the officers and directors of the Company listed in Schedule D to this Agreement.
(p) Secretary’s
Certificate. The Company shall have furnished to the Representative a Secretary’s Certificate of the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters and customary for the type of offering contemplated by this
Agreement.
(q) Chief
Financial Officer Certificate. The Company shall have furnished to the Representative a certificate, dated such Closing Date,
of its Chief Financial Officer.
(r) Additional
Document. On or prior to such Closing Date, the Company shall have furnished to the Representative such further certificates
and documents as the Representative may reasonably request.
All opinions, letters,
evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification
and Contribution.
(a) Indemnification
of Underwriters by the Company. The Company shall indemnify and hold harmless:
each Underwriter,
its affiliates, directors, officers, managers, members, employees, representatives and agents and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Underwriter
Indemnified Parties,” and each an “Underwriter Indemnified Party”) against any loss, claim,
damage, expense or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which
such Underwriter Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
expense, liability, action, investigation or proceeding arises out of or is based upon (A) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any "issuer information"
filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement, the Prospectus,
or in any amendment or supplement thereto or document incorporated by reference therein, or in any materials or information provided
to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock, including
any roadshow or investor presentations made to investors by the Company (whether in person or electronically) (“Marketing
Materials”) or (B) the omission or alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any "issuer information" filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations,
the Registration Statement or the Prospectus, or in any amendment or supplement thereto or document incorporated by reference therein,
or in any Marketing Materials, a material fact required to be stated therein or necessary to make the statements therein (with
respect to the Prospectus, in light of the circumstances in which they were made), not misleading, and shall reimburse each Underwriter
Indemnified Party promptly upon demand for any legal fees or other expenses reasonably incurred by that Underwriter Indemnified
Party in connection with investigating, or preparing to defend, or defending against, or appearing as a third party witness in
respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or
proceeding, as such fees and expenses are incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, expense or liability arises out of or is based upon an untrue statement
or alleged untrue statement in, or omission or alleged omission from any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any such amendment or supplement thereto, any Issuer Free Writing Prospectus or any Marketing Materials made
in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf
of any Underwriter specifically for use therein, which information the parties hereto agree is limited to the Underwriters’
Information.
The indemnity agreement in this
Section 7(a) is not exclusive and is in addition to each other liability which the Company might have under this Agreement or otherwise,
and shall not limit any rights or remedies which may otherwise be available under this Agreement, at law or in equity to any Underwriter
Indemnified Party.
(b) Indemnification
of Company by the Underwriters. Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company
and its directors, its officers 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 (collectively the “Company Indemnified
Parties” and each a “Company Indemnified Party”) against any loss, claim, damage, expense
or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Company
Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability,
action, investigation or proceeding arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or
required to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, any Issuer
Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules
and Regulations, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required
to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representative by or on behalf of that Underwriter specifically for use therein,
which information the parties hereto agree is limited to the Underwriters’ Information, and shall reimburse the Company Indemnified
Parties for any legal or other expenses reasonably incurred by such party in connection with investigating or preparing to defend
or defending against or appearing as third-party witness in connection with any such loss, claim, damage, liability, action, investigation
or proceeding, as such fees and expenses are incurred. This indemnity agreement is not exclusive and will be in addition to any
liability which the Underwriters might otherwise have and shall not limit any rights or remedies which may otherwise be available
under this Agreement, at law or in equity to the Company Indemnified Parties.
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, the indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying party under this Section 7 notify such indemnifying party in
writing of the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 7 except to the extent it has been materially prejudiced by
such failure; and, provided, further, that the failure to notify an indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7. If any such action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such action
with counsel reasonably satisfactory to the indemnified party (which counsel shall not, except with the written consent of the
indemnified party, be counsel to the indemnifying party). After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such action, except as provided herein, the indemnifying party shall not be liable to the
indemnified party under Section 7 for any legal or other expenses subsequently incurred by the indemnified party in connection
with the defense of such action other than reasonable costs of investigation; provided, however, that any indemnified party
shall have the right to employ separate counsel in any such action and to participate in the defense of such action but the fees
and expenses of such counsel (other than reasonable costs of investigation) shall be at the expense of such indemnified party unless
(i) the employment thereof has been specifically authorized in writing by the Company in the case of a claim for indemnification
under Section 7(a) or the Representative in the case of a claim for indemnification under Section 7(b), (ii) such indemnified party
shall have been advised by its counsel that there may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party or (iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified party within a reasonable period of time after notice of the
commencement of the action or the indemnifying party does not diligently defend the action after assumption of the defense, in
which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of (or, in the case of
a failure to diligently defend the action after assumption of the defense, to continue to defend) such action on behalf of such
indemnified party and the indemnifying party shall be responsible for legal or other expenses subsequently incurred by such indemnified
party in connection with the defense of such action; provided, however, that, the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable and documented fees and expenses of more than one
separate firm of attorneys at any time for all such indemnified parties (in addition to any local counsel), which firm shall be
designated in writing by the Representative if the indemnified parties under this Section 7 consist of any Underwriter Indemnified
Party or by the Company if the indemnified parties under this Section 7 consist of any Company Indemnified Parties. Subject
to this Section 7(c), the amount payable by an indemnifying party under Section 7 shall include, but not be limited to, (x) reasonable
and documented legal fees and expenses of counsel to the indemnified party and any other expenses in investigating, or preparing
to defend or defending against, or appearing as a third-party witness in respect of, or otherwise incurred in connection with,
any action, investigation, proceeding or claim, and (y) all amounts paid in settlement of any of the foregoing. No indemnifying
party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of judgment
with respect to any pending or threatened action or any claim whatsoever, in respect of which indemnification or contribution could
be sought under this Section 7 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party in form and substance reasonably satisfactory
to such indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. Subject to the provisions of the
following sentence, no indemnifying party shall be liable for settlement of any pending or threatened action or any claim whatsoever
that is effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with
its written consent, if its consent has been unreasonably withheld or delayed or if there be a judgment for the plaintiff in any
such matter, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment. In addition, if at any time an indemnified party shall have requested that an indemnifying
party reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 7(a) effected without its written consent if (i) such settlement is entered
into more than forty-five (45) days after receipt by such indemnifying party of the request for reimbursement, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior
to the date of such settlement.
(d) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or 7(b), then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid,
payable or otherwise incurred by such indemnified party as a result of such loss, claim, damage, expense or liability (or any action,
investigation or proceeding in respect thereof), as incurred, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Stock, or (ii) if the
allocation provided by clause (i) of this Section 7(d) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) of this Section 7(d) but also the relative fault of the Company
on the one hand and the Underwriters on the other with respect to the statements, omissions, acts or failures to act which resulted
in such loss, claim, damage, expense or liability (or any action, investigation or proceeding in respect thereof) as well as any
other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering
of the Stock purchased under this Agreement (before deducting expenses) received by the Company bears to the total underwriting
discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters
on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement, omission, act or failure to act; provided that the parties hereto agree that
the written information furnished to the Company through the Representative by or on behalf of the Underwriters for use in the
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, consists solely
of the Underwriters’ Information.
(e) The
Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to Section 7(d) above were
to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations
referred to Section 7(d) above. The amount paid or payable by an indemnified party as a result of the loss, claim, damage, expense,
liability, action, investigation or proceeding referred to in Section 7(d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing
to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with, any
such loss, claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the provisions of this Section
7, no Underwriters shall be required to contribute any amount in excess of the amount by which the total underwriting discounts
and commissions received by such Underwriter with respect to the offering of the Stock exceeds the amount of any damages which
the Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement, omission or alleged
omission, act or alleged act or failure to act or alleged failure to act. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to contribute as provided in this Section 7 are several in proportion
to their respective underwriting obligations and not joint.
8. Termination.
The obligations of the Underwriters hereunder may be terminated by the Representative, in its absolute discretion by notice given
to the Company prior to delivery of and payment for the Firm Stock if, prior to that time, any of the events described in Sections
6(j), 6(l) or 6(m) or have occurred or if the Underwriters shall decline to purchase the Stock for any reason permitted under this
Agreement.
9. Reimbursement
of Underwriters’ Expenses. Notwithstanding anything to the contrary in this Agreement, if (a) this Agreement shall
have been terminated pursuant to Section 8 or 10, (b) the Company shall fail to tender the Stock for delivery to the Underwriters
for any reason not permitted under this Agreement, (c) the Underwriters shall decline to purchase the Stock for any reason permitted
under this Agreement or (d) the sale of the Stock is not consummated because any condition to the obligations of the Underwriters
set forth herein is not satisfied or because of the refusal, inability or failure on the part of the Company to perform any agreement
herein or to satisfy any condition or to comply with the provisions hereof, then in addition to the payment of amounts in accordance
with Section 5, the Company shall reimburse the Underwriters for the reasonable and documented fees and expenses of Underwriters’
counsel and for such other documented out-of-pocket expenses as shall have been reasonably incurred by them in connection with
this Agreement and the proposed purchase of the Stock, including, without limitation, reasonable and documented travel and lodging
expenses of the Underwriters, and upon demand the Company shall pay the full amount thereof to the Representative; provided
that if this Agreement is terminated pursuant to Section 10 by reason of the default of one or more Underwriters, the Company shall
not be obligated to reimburse any defaulting Underwriter on account of expenses to the extent incurred by such defaulting Underwriter
provided further that the foregoing shall not limit any reimbursement obligation of the Company to any non-defaulting Underwriter
under this Section 9.
10. Substitution
of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of
Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such
Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to
purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults
occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and
arrangements satisfactory to the Representative and the Company for the purchase of such shares by other persons are not made within
forty-eight (48) hours after such default, this Agreement shall terminate.
If the remaining Underwriters
or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter
or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such
Closing Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company
agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made
necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters
shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements
set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the
provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
11. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) each
Underwriter’s responsibility to the Company is solely contractual in nature, the Representative has been retained solely
to act as an underwriter in connection with the sale of the Stock and no fiduciary, advisory or agency relationship between the
Company and the Representative has been created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Representative has advised or is advising the Company on other matters;
(b) the
price of the Stock set forth in this Agreement was established by the Company following discussions and arms-length negotiations
with the Representative, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks
and conditions of the transactions contemplated by this Agreement;
(c) it
has been advised that the Representative and its affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that the Representative has no obligation to disclose such interests and transactions
to the Company by virtue of any fiduciary, advisory or agency relationship; and
(d) it
waives, to the fullest extent permitted by law, any claims it may have against the Representative for breach of fiduciary duty
or alleged breach of fiduciary duty and agrees that the Representative shall have no liability (whether direct or indirect) to
the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right
of the Company, including stockholders, employees or creditors of the Company.
12. Successors;
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the several
Underwriters, the Company and their respective successors and assigns. Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any person, other than the persons mentioned in the preceding sentence, any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other
person; except that the representations, warranties, covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the Underwriter Indemnified Parties, and the indemnities of the several Underwriters shall be
for the benefit of the Company Indemnified Parties. It is understood that each Underwriter’s responsibility to the Company
is solely contractual in nature and the Underwriters do not owe the Company, or any other party, any fiduciary duty as a result
of this Agreement. No purchaser of any of the Stock from any Underwriter shall be deemed to be a successor or assign by reason
merely of such purchase.
13. Survival
of Indemnities, Representations, Warranties, etc. The respective indemnities, covenants, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by them respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter, the Company or any person controlling any of them and shall survive delivery of and payment for the Stock. Notwithstanding
any termination of this Agreement, including without limitation any termination pursuant to Section 8 or Section 10, the indemnities,
covenants, agreements, representations, warranties and other statements forth in Sections 2, 5, 7 and 9 and Sections 11 through
21, inclusive, of this Agreement shall not terminate and shall remain in full force and effect at all times.
14. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if
to the Underwriters, shall be delivered or sent by mail, telex, facsimile transmission or email to (i) Xxxxx and Company, LLC,
Attention: Head of Equity Capital Markets, Fax: 000-000-0000 with a copy to the General Counsel, Fax: 000-000-0000 and (ii) Xxxxxxx
Xxxxx and Xxxxxx X. Xxxxxxx, Xxxxxx LLP, The Grace Building, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and
(b) if
to the Company shall be delivered or sent by mail, telex, facsimile transmission or email to (i) CytoSorbents Corporation, 0 Xxxx
Xxxx Xxxxx, Xxxxx X, Xxxxxxxx Xxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxx, MD, PhD, Fax: 000-000-0000, email xxxxx@xxxxxxxxxxxx.xxx
and (ii) DLA Piper LLP (US), 00 Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx,
Esq., Fax: 000-000-0000, email xxxxx.xxxxxxxx@xxxxxxxx.xxx;
provided, however, that any notice
to an Underwriter pursuant to Section 7 shall be delivered or sent by mail, or facsimile transmission to such Underwriter at its
address set forth in its acceptance telex to the Representative, which address will be supplied to any other party hereto by the
Representative upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.
15. Definition
of Certain Terms. For purposes of this Agreement, (a) “affiliate” has the meaning set forth
in Rule 405 under the Securities Act, (b) “business day” means any day on which the New York Stock Exchange,
Inc. is open for trading and (c) “subsidiary” has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing
Law, Agent For Service and Jurisdiction. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, including without limitation Section 5-1401 of the New York General Obligations Law. The
Company irrevocably (a) submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in
The City of New York for the purpose of any suit, action or other proceeding arising out of this Agreement or the transactions
contemplated by this Agreement, the Registration Statement and any Preliminary Prospectus or the Prospectus, (b) agrees that all
claims in respect of any such suit, action or proceeding may be heard and determined by any such court, (c) waives to the fullest
extent permitted by applicable law, any immunity from the jurisdiction of any such court or from any legal process, (d) agrees
not to commence any such suit, action or proceeding other than in such courts and (e) waives, to the fullest extent permitted by
applicable law, any claim that any such suit, action or proceeding is brought in an inconvenient forum.
17. Underwriters’
Information. The parties hereto acknowledge and agree that, for all purposes of this Agreement, the Underwriters’
Information consists solely of the following information in the Prospectus: (i) the last paragraph on the front cover page concerning
the terms of the offering by the Underwriters; and (ii) the statements concerning the Underwriters contained in the eighth paragraph
and the first sentence of the ninth paragraph under the heading “Underwriting.”
18. Authority
of the Representative. In connection with this Agreement, the Representative will act for and on behalf of the several
Underwriters, and any action taken under this Agreement by the Representative, will be binding on all the Underwriters.
19. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph, clause or provision of this Agreement
shall not affect the validity or enforceability of any other section, paragraph, clause or provision hereof. If any section, paragraph,
clause or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
20. General.
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. In this Agreement,
the masculine, feminine and neuter genders and the singular and the plural include one another. The section headings in this Agreement
are for the convenience of the parties only and will not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may be waived, only by a writing signed by the Company
and the Representative.
21. Counterparts.
This Agreement may be signed in any number of counterparts, each of which shall be an original, including by facsimile or other
electronic transmission, with the same effect as if the signatures thereto and hereto were upon the same instrument.
If the foregoing is
in accordance with your understanding please indicate your acceptance of this Agreement by signing in the space provided for that
purpose below.
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Very truly yours, |
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CYTOSORBENTS CORPORATION |
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By: |
/s/ Xxxxxxx Xxxx |
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Name: |
Xxxxxxx Xxxx |
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Title: |
CEO |
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| Accepted as of |
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| the date first above written: |
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| Xxxxx and Company, LLC |
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| Acting on its own behalf |
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| and as Representative of several |
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| Underwriters listed on Schedule A to this Agreement. |
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| By: |
Xxxxx and Company, LLC |
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| By: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Managing Director |
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SCHEDULE A
| Name |
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Number of Shares of Firm
Stock to
be Purchased |
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Number of Shares of
Optional Stock
to be
Purchased |
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| Xxxxx and Company, LLC |
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1,666,667 |
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250,000 |
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Aegis
Capital Corp.
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155,555 |
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23,333 |
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X.X.
Xxxxxxxxxx & Co., LLC
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155,555 |
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23,333 |
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X.
Xxxxx & Co., LLC
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88,889 |
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13,333 |
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Maxim
Group LLC
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88,889 |
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13,334 |
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Northland
Securities, Inc.
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66,667 |
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10,000 |
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| Total |
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2,222,222 |
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333,333 |
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SCHEDULE B
General Use Free Writing Prospectuses
None.
SCHEDULE C
Pricing
Information
Firm Stock to be Sold: 2,222,222 shares
Over-Allotment Option Available: 333,333 shares
Public Offering Price: $4.50 per
share
Underwriting Discounts and
Commissions: 6.50% (or $4.2075 per share)
Estimated Net Proceeds to the Company (after
underwriting discounts and commissions, but before transaction expenses): $9,349,999.07
SCHEDULE D
List of officers and directors subject to
Section 4(k)
Xxxxxx Xxxx, MD
Xxxxxxxx X. Xxxxx
Xxxxx Xxxxxxx
Xx Xxxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxxxxxx
Exhibit I
Form of Lock-Up Agreement
March __, 2017
Xxxxx
and Company, LLC
As Representative of the several
Underwriters
c/o Cowen and Company, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: CytoSorbents Corporation – Registration
Statement on Form S-3 for Shares of Common Stock
Dear Sirs:
This letter agreement (this “Agreement”)
is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”)
between CytoSorbents Corporation, a Delaware corporation (the “Company”), and Xxxxx and Company, LLC,
as representative (the “Representative”) of a group of underwriters (collectively, the “Underwriters”)
to be named therein, and the other parties thereto (if any), relating to the proposed public offering of shares of the common stock
(the “Offering”), par value $0.001 per share (the “Common Stock”) of the Company.
In order to induce you and the other Underwriters
to enter into the Underwriting Agreement, and in light of the benefits that the Offering will confer upon the undersigned in its
capacity as a securityholder and/or an officer or director of the Company, and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter that, during the period beginning
on the date hereof through and including the date that is the 90th day after the date of the Underwriting Agreement (the “Lock-Up
Period”), the undersigned will not, without the prior written consent of the Representative, directly or indirectly,
(i) offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, or announce the intention to otherwise dispose
of, any shares of Common Stock (including, without limitation, Common Stock which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations promulgated under the Securities Act of 1933, as amended (the “Securities
Act”), as the same may be amended or supplemented from time to time (such shares, the “Beneficially Owned
Shares”)) or securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap,
hedge or similar agreement or arrangement that transfers in whole or in part, the economic risk of ownership of the Beneficially
Owned Shares or securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired
by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or (iii) engage
in any short selling of the Common Stock or securities convertible into or exercisable or exchangeable for Common Stock.
The restrictions set forth in the immediately
preceding paragraph shall not apply to:
(1) if
the undersigned is a natural person, any transfers made by the undersigned (a) as a bona fide gift to any member of the immediate
family (as defined below) of the undersigned or to a trust the beneficiaries of which are exclusively the undersigned or members
of the undersigned’s immediate family, (b) by will or intestate succession upon the death of the undersigned or by operation
of law or (c) as a bona fide gift to a charity or educational institution,
(2) if
the undersigned is a corporation, partnership, limited liability company or other business entity, any transfers to any stockholder,
partner or member of, or owner of a similar equity interest in, the undersigned, as the case may be, if, in any such case, such
transfer is not for value,
(3) if
the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer made by the undersigned
(a) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s
capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially
all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by
this Agreement or (b) to another corporation, partnership, limited liability company or other business entity so long as the transferee
is an affiliate (as defined below) of the undersigned and such transfer is not for value,
(4) if
the undersigned is a trust, distributions of shares of Common Stock or other securities convertible into or exercisable or exchangeable
for Common Stock to a trustee or the beneficiaries or to the estate of a beneficiary of such trust in a transaction not involving
a disposition for value; provided that no filing by the transferor or transferee under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily
in connection with such distribution until after the expiration of the Lock-Up Period,
(5) transactions
relating to Common Stock or other securities convertible into or exercisable or exchangeable for Common Stock acquired in open
market transactions after completion of the Offering, provided, however, no such transaction is required to be, or is, publicly
announced (whether on Form 4, Form 5 or otherwise) during the Lock-Up Period,
(6) transactions
relating to Common Stock acquired by the undersigned in the Offering, provided, however, no such transaction is required
to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise) during the Lock-Up Period,
(7) any
transfers made by the undersigned to the Company to satisfy tax withholding obligations pursuant to the Company’s equity
incentive plans or arrangements disclosed in the Prospectus (as defined in the Underwriting Agreement), and
(8) the
establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Stock, provided
that such plan does not provide for the transfer of Common Stock during the Lock-Up Period, and provided, further
that no public announcement of the establishment or existence of such plan, and no filing with the SEC or any other regulatory
authority in respect thereof, shall be required, and no such public announcement or filing shall be made voluntarily, in each case,
prior to the expiration of the Lock-Up Period;
provided, however, that (A)
in the case of any transfer described in clause (1), (2), (3) or (4) above, it shall be a condition to the transfer that
the transferee executes and delivers to the Representative, acting on behalf of the Underwriters, not later than one business day
prior to such transfer, a written agreement, in substantially the form of this Agreement (it being understood that any references
to “immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate family
of the undersigned and not to the immediate family of the transferee) and otherwise satisfactory in form and substance to the Representative,
and (B) in the case of any transfer described in clause (1), (2), (3) or (8) above, if the undersigned is required to file
a report under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock
or Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable for Common Stock or Beneficially
Owned Shares during the Lock-Up Period, the undersigned shall include a statement in such report to the effect that, (x) in the
case of any transfer pursuant to clause (1) above, such transfer is being made as a gift or by will or intestate succession,
(y) in the case of any transfer pursuant to clause (2) above, such transfer is being made to a stockholder, partner or member
of, or owner of a similar equity interest in, the undersigned and is not a transfer for value, and (z) in the case of any transfer
pursuant to clause (3) above, such transfer is being made either (i) in connection with the sale or other bona fide transfer in
a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests
or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets or (ii) to
another corporation, partnership, limited liability company or other business entity that is an affiliate of the undersigned and
such transfer is not for value, and (C) in the case of any transfer pursuant to clause (7) above, such transfer is being made to
satisfy tax withholding obligations. For purposes of this paragraph, “immediate family” shall mean a spouse, child,
grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the undersigned; and “affiliate”
shall have the meaning set forth in Rule 405 under the Securities Act.
For avoidance of doubt, nothing in this
Agreement prohibits the undersigned from exercising any options or warrants to purchase Common Stock (which exercises may be effected
on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis),
it being understood that any Common Stock issued upon such exercises will be subject to the restrictions of this Agreement.
In order to enable this covenant to be
enforced, the undersigned hereby consents to the placing of legends or stop transfer instructions with the Company’s transfer
agent with respect to any Common Stock or securities convertible into or exercisable or exchangeable for Common Stock.
The undersigned further agrees that it
will not, during the Lock-Up Period, make any demand or request for or exercise any right with respect to the registration under
the Securities Act, of any shares of Common Stock or other Beneficially Owned Shares or any securities convertible into or exercisable
or exchangeable for Common Stock or other Beneficially Owned Shares.
This Agreement and all authority herein
conferred are irrevocable and shall survive the death or incapacity of the undersigned and shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
The undersigned hereby represents and warrants
that the undersigned has full power and authority to enter into this Agreement and that this Agreement has been duly authorized
(if the undersigned is not a natural person), executed and delivered by the undersigned and is a valid and binding agreement of
the undersigned. This Agreement and all authority herein conferred are irrevocable and shall survive the death or incapacity of
the undersigned (if a natural person) and shall be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such
state.
If (i) the Company notifies the Representative
in writing that it does not intend to proceed with the Offering, (ii) the Underwriting Agreement is not executed by May 31, 2017,
or (iii) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated
for any reason prior to payment for and delivery of any Common Stock to be sold thereunder, then this Agreement shall immediately
be terminated and the undersigned shall automatically be released from all of his or her obligations under this Agreement. The
undersigned acknowledges and agrees that whether or not any public offering of Common Stock actually occurs depends on a number
of factors, including market conditions.
Exhibit II
Form of Opinion of Company Counsel
Exhibit III
Form of Opinion of Intellectual
Property Counsel of the Company
