Exhibit 10.1
PLACEMENT
AGENCY AGREEMENT
January 31, 2024
Maxim Group LLC
000 Xxxx Xxxxxx, 16th Floor
New York, NY 10022
Ladies and Gentlemen:
Subject to the terms and conditions
herein (this “Agreement”),Applied DNA Sciences, Inc., a Delaware corporation (the “Company”),
hereby agrees to sell up to an aggregate of $3,437,233.15 of registered and unregistered securities of the Company, including, but not
limited to, an aggregate of 3,228,056 registered shares of the Company’s common stock (the “Shares”) par value
$0.001 per share (the “Common Stock”), 2,416,005 registered pre-funded common stock purchase warrants to purchase shares
of Common Stock (the “Pre-Funded Warrants”), and unregistered common stock purchase warrants to purchase up to an aggregate
of 11,288,122 shares of Common Stock (the “Common Warrants”, which together with the Pre-Funded Warrants are the “Warrants”,
and the Common Stock underlying the Pre-Funded Warrants and Common Warrants, the “Warrant Shares”, and the Shares,
the Warrants and the Warrant Shares, the “Securities”) directly to various investors (each, an “Investor”
and, collectively, the “Investors”) through Maxim Group LLC as placement agent (the “Placement Agent”).
The documents executed and delivered by the Company and the Investors in connection with the Offering (as defined below), including, without
limitation, a securities purchase agreement (the “Purchase Agreement”), shall be collectively referred to herein as
the “Transaction Documents.” The purchase price to the Investors for each Share is $0.609, the purchase price to the
Investors for each Pre-Funded Warrant is $0.6089, the exercise price to the Investors for each share of Common Stock issuable upon exercise
of the Pre-Funded Warrants is $0.0001, and the exercise price to the Investors for each share of Common Stock issuable upon exercise of
the Common Warrants is $0.609. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers on its
behalf in connection with the Offering. Capitalized terms used herein and not otherwise defined shall have the meanings set forth for
them in the Purchase Agreement.
The Company hereby confirms
its agreement with the Placement Agent as follows:
Section 1. Agreement
to Act as Placement Agent.
(a) On
the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the offering and sale by the Company
of the Shares and the Pre-Funded Warrants pursuant to the Company’s registration statement on Form S-3 (File No. 333-272267)
(the “Registration Statement”), with a concurrent private placement of the Common Warrants, with the terms of such
offering (the “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent
and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges
that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under
no circumstances will the Placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite or purchase
any of the Securities for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s
agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to
purchase Securities and the Company shall have the sole right to accept offers to purchase Securities and may reject any such offer,
in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall
be made the closing of the Offering (“Closing” and the date on which Closing occurs, the “Closing Date”).
The Closing of the issuance of the Shares shall occur via “Delivery Versus Payment”, i.e., on the Closing Date, the Company
shall issue the Shares directly to the account designated by the Placement Agent and, upon receipt of such Shares, the Placement Agent
shall electronically deliver such Shares to the applicable Investor and payment shall be made by the Placement Agent (or its clearing
firm) by wire transfer to the Company. As compensation for services rendered, on the Closing Date, the Company shall pay to the Placement
Agent the fees and expenses set forth below:
(i) A
cash fee equal to 6.5% of the aggregate gross proceeds received by the Company from the sale of the Securities at Closing.
(ii) The
Company also agrees to reimburse Placement Agent’s expenses up to a maximum of $50,000, unless otherwise agreed by the Company and
the Placement Agent, payable immediately upon the Closing of the Offering.
(b) The
term of the Placement Agent’s exclusive engagement shall be until the earlier of (i) the final closing date of the Offering
and (ii) 30 days from the date hereof (in the case of (ii), provided no Purchase Agreement has been executed). Notwithstanding anything
to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the
Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement,
and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable
pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(g)(4)(A), will survive any expiration
or termination of this Agreement, provided, however, that if for any reason an Offering is not consummated, then the obligation of the
Company to reimburse the Placement Agent for expenses shall not exceed $20,000 in the aggregate. Nothing in this Agreement shall be construed
to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking,
financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities
Act”).
Section 2. Representations,
Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants
to the Placement Agent as of the date hereof, and as of the Closing Date, as follows:
(a) Securities
Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”) the Registration
Statement under the Securities Act, which was filed on May 30, 2023, and declared effective on June 6, 2023 for the registration
of the Shares and the Pre-Funded Warrants under the Securities Act. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under
the Securities Act and complies with said rule. Following the determination of pricing among the Company and the prospective Investors
introduced to the Company by Placement Agent, the Company will file with the Commission pursuant to Rules 430A and 424(b) under
the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated
thereunder, a prospectus supplement relating to the placement of the Shares and the Pre-Funded Warrants, their respective pricings and
the plan of distribution thereof and will advise the Placement Agent of all further information (financial and other) with respect to
the Company required to be set forth therein. Such registration statement, at any given time, including the exhibits thereto filed at
such time, as amended at such time, is hereinafter called the “Registration Statement”; such prospectus in the form
in which it appears in the Registration Statement at the time of effectiveness is hereinafter called the “Base Prospectus”;
and the prospectus supplement, in the form in which it will be filed with the Commission pursuant to Rules 430A and/or 424(b) is
hereinafter called the “Prospectus Supplement.” Any reference in this Agreement to the Registration Statement, the
Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the
“Incorporated Documents”), if any, which were or are filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), at any given time, as the case may be; and any reference in this Agreement to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement,
or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference.
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement, the
Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the
Base Prospectus or the Prospectus Supplement, as the case may be. As used in this paragraph and elsewhere in this Agreement, “Time
of Sale Disclosure Package” means the Base Prospectus, any securities purchase agreement between the Company and the Investors,
the final terms of the Offering provided to the Investors (orally or in writing) and any issuer free writing prospectus as defined in
Rule 433 of the Act (each, an “Issuer Free Writing Prospectus”), if any, that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Time of Sale Disclosure Package. The term “any Prospectus” shall
mean, as the context requires, the Base Prospectus, the Prospectus Supplement, and any supplement to either thereof. The Company has not
received any notice that the Commission has issued or intends to issue a stop order suspending the effectiveness of the Registration Statement
or the use of the Base Prospectus or any prospectus supplement or intends to commence a proceeding for any such purpose.
(b) Assurances.
The Registration Statement, as amended, (and any further documents to be filed with the Commission) contains all exhibits and schedules
as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time it became
effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and did not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus Supplement, as of its date, compiled or will comply in all material respects with the Securities
Act and the applicable Rules and Regulations. The Prospectus Supplement, as amended or supplemented, did not and will not contain
as of the date thereof any 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. The Incorporated Documents, when they were filed with
the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations
promulgated thereunder, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated
by reference in the Prospectus Supplement), in light of the circumstances under which they were made not misleading. No post-effective
amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or
in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission. Except for this
Agreement and the Transaction Documents, there are no documents required to be filed with the Commission in connection with the transaction
contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within
the requisite time period. Except for this Agreement and the Transaction Documents, there are no contracts or other documents required
to be described in the Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not been
described or filed as required.
(c) Offering
Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the
Closing Date, any offering material in connection with the offering and sale of the Securities other than the Time of Sale Disclosure
Package.
(d) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and the Time of Sale Disclosure Package and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of each of this Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Company’s
Board of Directors (the “Board of Directors”) or the Company’s shareholders in connection therewith other than
in connection with the Required Approvals (as defined in the Purchase Agreement). This Agreement has been duly executed by the Company
and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(e) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant to
the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the transactions contemplated
hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s or
any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such
as could not have or reasonably be expected to result in a Material Adverse Effect, as defined in the Securities Purchase Agreement.
(f) Certificates.
Any certificate signed by an officer of the Company and delivered to the Placement Agent or to counsel for the Placement Agent shall be
deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth therein.
(g) Reliance.
The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations and warranties
and hereby consents to such reliance.
(h) Forward-Looking
Statements. No forward-looking statements (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Time of Sale Disclosure Package have been made or reaffirmed without a reasonable basis or have been disclosed
other than in good faith.
(i) Statistical
or Market-Related Data. Any statistical, industry-related and market-related data included or incorporated by reference in the Time
of Sale Disclosure Package, are based on or derived from sources that the Company reasonably and in good faith believes to be reliable
and accurate, and such data agree with the sources from which they are derived.
(j) Certain
Fees; FINRA Affiliations. Except as set forth in the Registration Statement and Prospectus Supplement, no brokerage or finder’s
fees or commissions are or will be payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction
Documents. There are no other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its
shareholders that may affect the Placement Agent’s compensation, as determined by FINRA. Other than payments to the Placement Agent
for this Offering or as set forth in the Registration Statement and Prospectus, the Company has not made and has no agreements, arrangements
or understanding to make any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s
fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons
who raised or provided capital to the Company; (ii) any FINRA member participating in the offering as defined in FINRA Rule 5110
(a “Participating Member”); or (iii) any person or entity that has any direct or indirect affiliation or association
with any Participating Member, within the 180-day period preceding the initial filing of the Registration Statement through the 60-day
period after the Closing Date. None of the net proceeds of the Offering will be paid by the Company to any Participating Member or its
affiliates, except as specifically authorized herein. To the Company’s knowledge, no officer, director or any beneficial owner of
5% or more of the Company’s Common Stock or Common Stock Equivalents (as defined in the Securities Purchase Agreement) has any direct
or indirect affiliation or association with any Participating Member in the Offering. Except for securities purchased on the open market,
no Company Affiliate is an owner of stock or other securities of any Participating Member. No Company Affiliate has made a subordinated
loan to any Participating Member. No proceeds from the sale of the Securities (excluding Placement Agent compensation as disclosed in
the Registration Statement and the Prospectus) will be paid to any Participating Member, any persons associated with a Participating Member
or an affiliate of a Participating Member. Except as disclosed in the Prospectus, the Company has not issued any warrants or other securities
or granted any options, directly or indirectly, to the Placement Agent within the 180-day period prior to the initial filing date of the
Prospectus. Except for securities issued to the Placement Agent as disclosed in the Prospectus, no person to whom securities of the Company
have been privately issued within the 180-day period prior to the initial filing date of the Prospectus is a Participating Member, is
a person associated with a Participating Member or is an affiliate of a Participating Member. To the Company’s knowledge, no Participating
Member in the Offering has a conflict of interest with the Company. For this purpose, a “conflict of interest” exists when
a Participating Member, the parent or affiliate of a Participating Member or any person associated with a Participating Member in the
aggregate beneficially own 5% or more of the Company’s outstanding subordinated debt or common equity, or 5% or more of the Company’s
preferred equity. “FINRA member participating in the Offering” includes any associated person of a Participating Member in
the Offering, any member of such associated person’s immediate family and any affiliate of a Participating Member in the Offering.
When used in this Section 3.1(j) the term “affiliate of a FINRA member” or “affiliated with a FINRA member”
means an entity that controls, is controlled by or is under common control with a FINRA member. The Company will advise the Placement
Agent and its legal counsel, Xxxxxx Xxxxxxx & Xxxxx LLP (the “Placement Agent Counsel”) if it learns that
any officer, director or owner of 5% or more of the Company’s outstanding Common Stock or Common Stock Equivalents is or becomes
an affiliate or associated person of a Participating Member.
(k) Board
of Directors. The Board of Directors is comprised of the persons set forth under the heading of the Company’s Annual Report
on Form 10-K captioned “Directors, Executive Officers and Corporate Governance.” The qualifications of the persons serving
as board members and the overall composition of the Board of Directors comply with the Xxxxxxxx-Xxxxx Act of 2002 and the rules promulgated
thereunder applicable to the Company and the rules of the Nasdaq Capital Market (the “Trading Market”). In addition,
at least a majority of the persons serving on the Board of Directors qualify as “independent” as defined under the rules of
the Trading Market.
(l) D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently completed by each
of the Company’s directors and officers is true and correct in all respects and the Company has not become aware of any information
which would cause the information disclosed in such questionnaires to become inaccurate and incorrect.
(m) Private
Placement; No General Solicitation. Assuming the accuracy of the Investors’ representations and warranties set forth in Purchase
Agreement, no registration under the Securities Act is required for the offer and sale of the Common Warrants and Common Stock underlying
the Common Warrants by the Company to the Investors as contemplated hereby. The issuance and sale of the Securities pursuant to the Transaction
Documents does not contravene the rules and regulations of the Trading Market. Neither the Company nor any Person acting on behalf
of the Company has offered or sold any of the Common Warrants or Common Stock underlying the Common Warrants by any form of general solicitation
or general advertising. The Company has offered the Securities for sale only to the Investors and certain other “accredited investors”
within the meaning of Rule 501 under the Securities Act.
(n) Representations
and Warranties Incorporated by Reference. Each of the representations and warranties (together with any related disclosure schedules
thereto) made to the Investors in the Purchase Agreement is hereby incorporated herein by reference (as though fully restated herein)
and is hereby made to, and in favor of, the Placement Agent.
Section 3. Delivery
and Payment. Closing shall occur at the offices of the Placement Agent Counsel at 0000 Xxxxxx
xxx Xxxx Xxxxx, Xxxxxxxxx, XX 00000 (or at such other place as shall be agreed upon by the Placement Agent and the Company). Subject to
the terms and conditions hereof, at Closing payment of the purchase price for the Securities sold on such Closing Date shall be made by
Federal Funds wire transfer, against delivery of such Securities, and such Securities shall be registered in such name or names and shall
be in such denominations, as the Placement Agent may request at least one business day before the time of purchase (as defined below).
Deliveries of the documents
with respect to the purchase of the Securities, if any, shall be made at the offices of Placement Agent Counsel. All actions taken at
Closing shall be deemed to have occurred simultaneously.
Section 4. Covenants
and Agreements of the Company. The Company further covenants and agrees with the Placement Agent
as follows:
(a) Registration
Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment
to the Registration Statement has been filed or becomes effective or any Prospectus Supplement has been filed and will furnish the Placement
Agent with copies thereof. The Company will 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), 14 or 15(d) of the Exchange Act subsequent to the date of
any prospectus supplement and for so long as the delivery of a prospectus is required in connection with the Offering. The Company will
advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration
Statement or to amend or supplement any prospectus supplement or for additional information, (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed
at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base
Prospectus, Prospectus Supplement or any other prospectus supplement or any amendment or supplement thereto or any post-effective amendment
to the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the
institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or a prospectus supplement or for additional information, (iii) of the issuance by any
state securities commission of any proceedings for the suspension of the qualification of the Securities for offering or sale in any jurisdiction
or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission
for filing of any amendment or supplement to the Registration Statement or Prospectus Supplement; (v) of the receipt of any comments
or request for any additional information from the Commission; and (vi) of the happening of any event during the period described
in this Section 4(a) that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement
or the Prospectus Supplement untrue or that requires the making of any changes in the Registration Statement or the Prospectus Supplement
in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall use
its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter
any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting
of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration
statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b),
430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and
will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely
manner by the Commission.
(b) Blue
Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Securities for
sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors may reasonably
request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required
to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and other documents
as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably request
for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration
of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption,
the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(c) Amendments
and Supplements to a Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange Act, and the rules and
regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this
Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered
in connection with the distribution of Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus
Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement
Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in
order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading,
or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act
any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own
expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration
Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents
and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not
misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply
with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with
the Offering, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any
such amendment or supplement to which the Placement Agent reasonably objects within two (2) Business Days, provided that the Company
may file any document or report reasonably determined by the Company to be required to be filed by the Company pursuant to the Securities
Act or the Exchange Act or the rules and regulations promulgated thereunder within the time periods required for such filings, irrespective
of any such objection of the Placement Agent.
(d) Copies
of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agent, without charge, during the period
beginning on the date hereof and ending on the Closing Date, as many copies of any Prospectus or prospectus supplement and any amendments
and supplements thereto, as the Placement Agent may reasonably request.
(e) Free
Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent, make
any offer relating to the Securities that would constitute a Company Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission
or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly consents in writing
to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that it shall (i) treat
each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply with the requirements of Rule 164
and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(f) Transfer
Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Shares.
(g) [Reserved]
(h) Periodic
Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and
the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required
by the Exchange Act.
(i) Additional
Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement Agent or the Investors
deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably acceptable to the Placement
Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and each is a third party beneficiary of, the representations
and warranties, and applicable covenants, set forth in any such purchase, subscription or other agreement with Investors in the Offering.
(j) No
Manipulation of Price. Neither the Company, nor to its knowledge, any of its employees, directors or shareholders, has taken or will
take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in,
under the Exchange Act, or otherwise stabilization or manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(k) Acknowledgment.
The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board of
Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior
written consent.
(l) Announcement
of Offering. The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing, make public its involvement
with the Offering.
(m) Reliance
on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n) Research
Matters. By entering into this Agreement, the Placement Agent does not provide any promise, either explicitly or implicitly, of favorable
or continued research coverage of the Company and the Company hereby acknowledges and agrees that the Placement Agent’s selection
as a placement agent for the Offering was in no way conditioned, explicitly or implicitly, on the Placement Agent providing favorable
or any research coverage of the Company. In accordance with FINRA Rule 2241(b)(2), the parties acknowledge and agree that the Placement
Agent has not directly or indirectly offered favorable research, a specific rating or a specific price target, or threatened to change
research, a rating or a price target, to the Company or inducement for the receipt of business or compensation. The Company hereby waives
and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to
any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments
may be different from or inconsistent with the views or advice communicated to the Company by the Placement Agent’s investment banking
divisions. The Company acknowledges that the Placement Agent is a full service securities firm and as such from time to time, subject
to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short position
in debt or equity securities of the Company.
(o) Subsequent
Equity Sales.
(i) From
the date hereof until 60 days after the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any Common Stock or Common Stock Equivalents or (ii) file any registration
statement or amendment or supplement thereto, other than the Prospectus or filing a registration statement on Form S-8 in connection
with any employee benefit plan, in each case without prior written consent of the Placement Agent.
(ii) From
the date hereof until 180 days after the Closing Date, the Company shall be prohibited from effecting or entering into an agreement to
effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of thereof)
involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues
or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional
shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon and/or
varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or
equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after
the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related
to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities
at a future determined price; provided, however, that following the restrictive period set forth in Section 4(o)(i), the entry into
and/or issuance of shares of Common Stock in an “at-the-market” offering with the Placement Agent as sales agent shall not
be deemed a Variable Rate Transaction. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any
such issuance, which remedy shall be in addition to any right to collect damages.
(iii) Notwithstanding
the foregoing, this Section 4(o) shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction
shall be an Exempt Issuance. An “Exempt Issuance” means the issuance of (a) shares of Common Stock or options
to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of
the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for
such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities
issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding
on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number
of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection
with stock splits or combinations) or to extend the term of such securities and (c) securities issued pursuant to acquisitions or
strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued
as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing
of any registration statement in connection therewith during the prohibition period in Section 4(o)(i), and provided that any such
issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company
or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits
in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the
purpose of raising capital or to an entity whose primary business is investing in securities.
(p) Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party to
a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific performance
of the terms of such Lock-Up Agreement.
(q) FINRA.
The Company shall advise the Placement Agent (who shall make an appropriate filing with FINRA) if it is aware that any officer, director,
5% or greater shareholder of the Company or Person that received the Company’s unregistered equity securities in the past 180 days
is or becomes an affiliate or associated person of a FINRA member firm prior to the earlier of the termination of this Agreement or the
60-day period after the Closing Date.
Section 5. Conditions
of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall
be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each
case as of the date hereof and as of the Closing Date as though then made, to the timely performance by each of the Company of its covenants
and other obligations hereunder on and as of such dates, and to each of the following additional conditions:
(a) Accountants’
Comfort Letters. On the Closing Date, the Placement Agent shall have received, and the Company shall have caused to be delivered to
the Placement Agent, a letter from Xxxxxx LLP addressed to the Placement Agent, dated as of such date, in form and substance satisfactory
to the Placement Agent. The letter shall not disclose any change in the condition (financial or other), earnings, operations, business
or prospects of the Company from that set forth in the Incorporated Documents or the applicable Prospectus or prospectus supplement, which,
in the Placement Agent’s sole judgment, is material and adverse and that makes it, in the Placement Agent’s sole judgment,
impracticable or inadvisable to proceed with the Offering of the Securities as contemplated by such Prospectus.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus (in accordance with Rule 424(b))
and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been duly filed with
the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing or suspending
the use of any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission;
no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company shall have
been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings for that purpose shall
have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange; all requests for additional information on the part of the Commission shall have been complied with; and
FINRA shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.
(c) Corporate
Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement and each
Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner reasonably satisfactory
to the Placement Agent’s counsel, and such counsel shall have been furnished with such papers and information as it may reasonably
have requested to enable such counsel to pass upon the matters referred to in this Section 5.
(d) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, in the Placement
Agent’s sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect or any material
adverse change or development involving a prospective material adverse change in the condition or the business activities, financial or
otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus (“Material
Adverse Change”).
(e) Opinion
of Counsel for the Company. The Placement Agent shall have received on the Closing Date (i) the favorable opinion of XxXxxxxxx
Will & Xxxxx LLP, U.S. counsel to the Company, and Xxxxxx Xxxxxxxx & Riegels LP, foreign counsel to the Company, both
dated as of such Closing Date, including, without limitation, a negative assurance letter addressed to the Placement Agent and in form
and substance satisfactory to the Placement Agent, and (ii) the favorable opinions of intellectual property legal counsel to the
Company, addressed to the Placement Agent in form and substance satisfactory to the Placement Agent.
(f) Officers’
Certificate. The Placement Agent shall have received on the Closing Date a certificate of the Company, dated as of such Closing Date,
signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the Placement Agent shall be
satisfied that, the signers of such certificate have reviewed the Registration Statement, the Incorporated Documents, the Prospectus,
and this Agreement and to the further effect that:
(i) The
representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date, and the
Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to
such Closing Date;
(ii) No
stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued by
any securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;
(iii) When
the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such certificate,
the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with the Commission,
and any Prospectus, contained all material information required to be included therein by the Securities Act and the Exchange Act and
the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to
the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder,
as the case may be, and the Registration Statement and the Incorporated Documents, if any, and any Prospectus, did not and do not include
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the effective date of
the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of the Commission
thereunder to be set forth in the Incorporated Documents which has not been so set forth; and
(iv) Subsequent
to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and any Prospectus,
there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company and the Subsidiaries
taken as a whole, except transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent,
that is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred
in the ordinary course of business; (d) any material change in the capital stock (except changes thereto resulting from the exercise
of outstanding stock options or warrants or conversion of outstanding preferred stock) or outstanding indebtedness of the Company or any
Subsidiary; (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company; or (f) any
loss or damage (whether or not insured) to the property of the Company or any Subsidiary which has been sustained or will have been sustained
which has a Material Adverse Effect.
(g) Form 8-K.
The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the Offering, including
as an exhibit thereto this Agreement.
(h) Stock
Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market, and the Company
shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration of the Common Stock
under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall the Company have received
any information suggesting that the Commission or the Trading Market is contemplating terminating such registration or listing, except
as disclosed in the Prospectus.
(i) Lock-Up
Agreements. On the date of execution of the Purchase Agreement, the Placement Agent shall have received the executed lock-up agreement
from each of the directors and executive officers of the Company.
(j) Additional
Documents. On or before the Closing Date, the Placement Agent and counsel for the Placement Agent shall have received such information
and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as
contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of
the conditions or agreements, herein contained.
If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement Agent
by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability on the part of any party
to any other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution) and Section 8
(Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.
Section 6. Payment
of Expenses. The Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the performance of
its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation: (i) all expenses
incident to the issuance, delivery and qualification of the Securities (including all printing and engraving costs); (ii) all fees
and expenses of the registrar and transfer agent of the Common Stock; (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities; (iv) all fees and expenses of the Company’s counsel, independent public
or certified public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates
of experts), and each prospectus supplement, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees,
reasonable attorneys’ fees and expenses incurred by the Company or the Placement Agent in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the state
securities or blue sky laws or the securities laws of any other country, and, if requested by the Placement Agent, preparing and printing
a “Blue Sky Survey,” an “International Blue Sky Survey” or other memorandum, and any supplements
thereto, advising the Placement Agent of such qualifications, registrations and exemptions; (vii) if applicable, the filing fees
incident to the review and approval by FINRA of the Placement Agent’s participation in the offering and distribution of the Securities;
(viii) the fees and expenses associated with including the Shares and Warrant Shares on the Trading Market; (ix) all costs and
expenses incident to the travel and accommodation of the Company’s and the Placement Agent’s employees on the “roadshow,”
if any; and (x) all other fees, costs and expenses referred to in Part II of the Registration Statement.
Section 7. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent (within
the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent, its affiliates
and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”) from
and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for all
Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are incurred
by an Indemnified Person in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person is a party
thereto, (i) caused by, or arising out of or in connection with, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading
(other than untrue statements or alleged untrue statements in, or omissions or alleged omissions from, information relating to an Indemnified
Person furnished in writing by or on behalf of such Indemnified Person expressly for use in the Incorporated Documents) or (ii) otherwise
arising out of or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services
or transactions; provided, however, that, in the case of clause (ii) only, the Company shall not be responsible for
any Liabilities or Expenses of any Indemnified Person that are finally judicially determined to have resulted solely from such Indemnified
Person’s (x) gross negligence or willful misconduct in connection with any of the advice, actions, inactions or services referred
to above or (y) use of any offering materials or information concerning the Company in connection with the offer or sale of the Securities
in the Offering which were not authorized for such use by the Company and which use constitutes gross negligence or willful misconduct.
The Company also agrees to reimburse each Indemnified Person for all Expenses as they are incurred in connection with enforcing such Indemnified
Person’s rights under this Agreement.
(b) Upon
receipt by an Indemnified Person of actual notice of an action against such Indemnified Person with respect to which indemnity may be
sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified
Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity
or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall,
if requested by the Placement Agent, assume the defense of any such action including the employment of counsel reasonably satisfactory
to the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or (ii) the named
parties to any such action (including any impeded parties) include such Indemnified Person and the Company, and such Indemnified Person
shall have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel selected
by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person; provided that the Company
shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for all Indemnified
Persons in connection with any action or related actions, in addition to any local counsel. The Company shall not be liable for any settlement
of any action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without
the prior written consent of the Placement Agent (which shall not be unreasonably withheld), settle, compromise or consent to the entry
of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which indemnification or contribution
may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all Liabilities arising out of such action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
(c) In
the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company
shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect
(i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not
permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement
Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate,
as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary
to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of fees
actually received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the Company,
on the one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed to be in
the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by the Company
in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated, bears
to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was
not guilty of fraudulent misrepresentation.
(d) The
Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services
or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted solely
from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions or
services.
(e) The
reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s services
under or in connection with, this Agreement.
Section 8. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations,
warranties and other statements of the Company or any person controlling the Company, of its officers, and of the Placement Agent set
forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf
of the Placement Agent, the Company, or any of its or their partners, officers or directors or any controlling person, as the case may
be, and will survive delivery of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to a
Placement Agent, or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits
of the indemnity, contribution and reimbursement agreements contained in this Agreement.
Section 9. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered, e-mailed or telecopied and confirmed to the parties
hereto as follows:
If to the Placement Agent to the address set forth
above, attention: Xxxxx Xxxxxx, email: xxxxxxx@xxxxxxxx.xxx.
With a copy to:
Xxxxxx Xxxxxxx & Xxxxx LLP
1600 Bausch and Lomb Place
Rochester, New York 14604
E-mail: XXxXxxxx@xxxxxx.xxx
Attention: Xxxxxxxxx X. XxXxxxx, Esq.
If to the Company:
Applied DNA Sciences, Inc.
00 Xxxxxx Xxxxxxxx Xxxxx
Stony Brook, New York 11790
Attention: Xxxx Xxxxxxx, CFO
Email: xxxx.xxxxxxx@xxxxx.xxx
With a copy to:
XxXxxxxxx Will & Xxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
New York, New York 10017
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxx X. Xxxxxxxx, Esq.
Email: xxxxxxxx@xxx.xxx; xxxxxxxxx@xxx.xxx
Any party hereto may change the address for receipt
of communications by giving written notice to the others.
Section 10. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative,
and no other person will have any right or obligation hereunder.
Section 11. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of
this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph
or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and enforceable.
Section 12. Governing
Law. This Agreement will be governed by, and construed in accordance with, the laws of the State
of New York applicable to agreements made and to be performed entirely in such State, without regard to the conflicts of laws principles
thereof. This Agreement may not be assigned by either party without the prior written consent of the other party. This Agreement shall
be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial
by jury with respect to any dispute arising under this Agreement or any transaction or conduct in connection herewith is waived. Any dispute
arising under this Agreement may be brought into the courts of the State of New York or into the Federal Court located in New York, New
York and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence
of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. The Company agrees that a final judgment in any such action, proceeding or counterclaim brought
in any such court shall be conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction of which
the Company is or may be subject, by suit upon such judgment. If either party to this Agreement shall commence an action or proceeding
to enforce any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall be reimbursed by the
other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such action or proceeding.
Section 13. General
Provisions.
(a) 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. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express
or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings herein
are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
(b) The
Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent’s responsibility to the
Company is solely contractual and commercial in nature, (ii) the Placement Agent has acted at arms length, are not agents of, and
owe no fiduciary duties to the Company or any other person, (iii) the Placement Agent owes the Company only those duties and obligations
set forth in this Agreement and (iv) the Placement Agent may have interests that differ from those of the Company. The Company waives
to the fullest extent permitted by applicable law any claims it may have against the Placement Agent arising from a breach or alleged
breach of fiduciary duty in connection with the offering of the Securities.
[The remainder of this page has been intentionally
left blank.]
If the foregoing is in accordance
with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts hereof, shall become
a binding agreement in accordance with its terms.
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Very truly yours, |
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APPLIED DNA SCIENCES, INC. |
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a Delaware corporation |
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By: |
/s/ Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx, Ph.D., Sc.D. |
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Title: |
Chairman, President & Chief Executive Officer |
The foregoing Placement Agency
Agreement is hereby confirmed and accepted as of the date first above written.
MAXIM GROUP LLC
By: |
/s/ Xxxxxxxx Xxxxxx |
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Name: Xxxxxxxx Xxxxxx |
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Title: Co-President |
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[Signature page to Placement Agency Agreement]