Corindus Vascular Robotics, Inc. 8-K
Exhibit
10.1
CORINDUS
VASCULAR ROBOTICS, INC.
$30,000,000
COMMON STOCK
SALES AGREEMENT
August
31, 2018
Xxxxx and Company, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Corindus Vascular Robotics,
Inc. (the “Company”), confirms its agreement (this “Agreement”) with Cowen
and Company, LLC (“Cowen”), as follows:
1. Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the
terms and subject to the conditions set forth herein, it may issue and sell through Cowen, acting as agent and/or principal, shares
(the “Placement Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), having an aggregate offering price of up to $30,000,000. Notwithstanding anything to the contrary contained
herein, the parties hereto agree that compliance with the limitation set forth in this Section 1 on the number of shares
of Common Stock issued and sold under this Agreement shall be the sole responsibility of the Company, and Cowen shall have no obligation
in connection with such compliance. The issuance and sale of Common Stock through Cowen will be effected pursuant to the Registration
Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below)
to issue the Common Stock.
The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “Securities Act”), with the Commission a registration statement on Form
S-3 (File No. 333-217344), including a base prospectus, relating to certain securities, including the Common Stock, to be issued
from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Placement
Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement.
The Company has furnished to Cowen, for use by Cowen, copies of the prospectus included as part of such registration statement,
as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires, such
registration statement, and any post-effective amendment thereto, as amended when it became effective, including all documents
filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined
below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such
registration statement pursuant to Rule 430B or 462(b) of the Securities Act or any subsequent registration statement on Form
S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares is herein called the
“Registration Statement.” The base prospectus, including all documents incorporated therein by reference,
included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus
and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the
Securities Act, together with any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act regulations
(“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission
by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g),
is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus
or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein,
and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to
the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of
any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references
to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System (“XXXXX”).
2. Placements. Each time that the Company wishes to issue and sell the Placement Shares hereunder (each, a “Placement”),
it will notify Cowen by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters in accordance with which it desires the Placement Shares to be sold, which shall at a minimum include
the number of shares of Placement Shares to be issued, the time period during which sales are requested to be made, any limitation
on the number of Placement Shares that may be sold in any one Trading Day (as defined in Section 3) and any minimum price
below which sales may not be made, a form of which containing such minimum sales parameters necessary is attached hereto as Schedule
1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule 2
(with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the
individuals from Cowen set forth on Schedule 2, as such Schedule 2 may be amended in writing from time
to time in accordance herewith. The Placement Notice shall be effective upon receipt by Cowen unless and until (i) in accordance
with the notice requirements set forth in Section 4, Cowen declines to accept the terms contained therein for any reason,
in its sole discretion, (ii) the entire amount of the Placement Shares have been sold, (iii) in accordance with the notice requirements
set forth in Section 4, the Company suspends or terminates the Placement Notice for any reason, in the Company’s sole
and absolute discretion, (iv) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier
dated Placement Notice, or (v) this Agreement has been terminated under the provisions of Section 11. The amount of any
discount, commission or other compensation to be paid by the Company to Cowen in connection with the sale of the Placement Shares
shall be calculated in accordance with the terms set forth in Schedule 3. It is expressly acknowledged and agreed
that neither the Company nor Cowen will have any obligation whatsoever with respect to a Placement or any Placement Shares unless
and until the Company delivers a Placement Notice to Cowen and Cowen does not decline such Placement Notice pursuant to the terms
set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this
Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale of Placement Shares by Cowen. Subject to the terms and conditions herein set forth, upon the Company’s
delivery of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or
otherwise terminated in accordance with the terms of this Agreement, Cowen, for the period specified in the Placement Notice, will
use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal
laws, rules and regulations and the rules of the NYSE American (“Exchange”) to sell such Placement Shares
up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. Cowen will provide written confirmation
to the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2,
if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via
auto-reply) no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has
made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the volume-weighted average
price of the Placement Shares sold, and the Net Proceeds (as defined below) payable to the Company. Cowen may sell Placement Shares
by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act.
Notwithstanding the provisions of Section 6(jj), Cowen shall not purchase Placement Shares for its own account as principal
unless expressly authorized to do so by the Company in a Placement Notice. The Company acknowledges and agrees that (i) there can
be no assurance that Cowen will be successful in selling Placement Shares, and (ii) Cowen will incur no liability or obligation
to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by Cowen
to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares
as required under this Section 3(a). For the purposes hereof, “Trading Day” means any day on which
the Company’s Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.
4. Suspension of Sales.
(a) The Company
or Cowen may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other
party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission
or email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend any sale
of Placement Shares; provided, however, that such suspension shall not affect or impair either party’s obligations
with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such
notice under this Section 4 shall be effective against the other unless it is made to one of the individuals named on Schedule
2 hereto, as such schedule may be amended in writing from time to time in accordance herewith.
(b) Notwithstanding
any other provision of this Agreement, during any period in which the Company is in possession of material non-public information,
the Company and Cowen agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request the sale of
any Placement Shares, and (iii) Cowen shall not be obligated to sell or offer to sell any Placement Shares.
5. Settlement.
(a) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “Settlement Date” and the first such settlement date,
the “First Delivery Date”). The amount of proceeds to be delivered to the Company on a Settlement Date
against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales
price received by Cowen at which such Placement Shares were sold, after deduction for (i) Xxxxx’x commission, discount
or other compensation for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and
payable by the Company to Cowen hereunder pursuant to Section 7(g) hereto, and (iii) any transaction fees imposed by any
governmental or self-regulatory organization in respect of such sales.
(b) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting Xxxxx’x or its designee’s account (provided Cowen shall have
given the Company written notice of such designee at least one (1) Trading Day prior to the Settlement Date) at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means
of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradeable, transferable, registered
shares in good deliverable form. Cowen will provide DWAC instructions or instructions for delivery by other means with regard
to the electronic transfer of the Placement Shares. On each Settlement Date, Cowen will deliver the related Net Proceeds in same
day funds to an account designated by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company,
or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Placement Shares on a Settlement
Date, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Section 9(a)
hereto, it will (i) hold Cowen harmless against any loss, claim, damage, or reasonable and documented expense (including
reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company
and (ii) pay to Cowen (without duplication) any commission, discount, or other compensation to which it would otherwise have been
entitled absent such default.
6. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, Cowen that
as of the date of this Agreement, each Representation Date (as defined in Section 7(m)), each date on which a Placement
Notice is given, and any date on which Placement Shares are sold hereunder:
(a) Compliance
with Registration Requirements. The Registration Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. The Company has complied to the Commission’s satisfaction with all
requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the knowledge of the Company, contemplated or threatened by the Commission. The Company meets the requirements
for use of Form S-3 under the Securities Act. The sale of the Placement Shares hereunder meets the requirements of General Instruction
I.B.1 of Form S-3.
(b) No
Misstatement or Omission. The Prospectus when filed complied and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement,
the Prospectus and any post-effective amendments or supplements thereto, at the time it became effective or its date, as applicable,
complied and as of each of the Settlement Dates, if any, complied in all material respects with the Securities Act and did not
and, as of each Settlement Date, if any, did not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended
or supplemented, as of its date, did not and, as of each of the Settlement Dates, if any, will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences
do not apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity
with information relating to Cowen furnished to the Company in writing by Cowen expressly for use therein. There are no contracts
or other documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have
not been described or filed as required.
(c) Offering
Materials Furnished to Cowen. The Company has delivered to Cowen one complete copy of the Registration Statement and a copy
of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Cowen has reasonably requested.
(d) Not
an Ineligible Issuer. The Company currently is not an “ineligible issuer,” as defined in Rule 405 of the rules
and regulation of the Commission. The Company agrees to notify Cowen promptly if the Company becomes an “ineligible issuer.”
(e) Distribution
of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the completion of Xxxxx’x
distribution of the Placement Shares, any offering material in connection with the offering and sale of the Placement Shares other
than the Prospectus or the Registration Statement.
(f) The
Sales Agreement. This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable
law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(g) Authorization
of the Placement Shares. The Placement Shares, when issued and delivered, will be duly authorized for issuance and sale pursuant
to this Agreement and, when issued and delivered by the Company against payment therefor pursuant to this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable.
(h) No Applicable
Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity or
debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement,
except for such rights as have been duly waived.
(i) No Material
Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information
is given in the Prospectus: (i) there has been no material adverse change in the condition, financial or otherwise, or in
the business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company
and its subsidiaries, considered as one entity (any such change is called a “Material Adverse Change”);
(ii) the Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect,
direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the
ordinary course of business: and (iii) other than the quarterly dividends payable on the Company’s outstanding shares
of Series A Convertible Preferred Stock, $0.0001 par value per share (the “Series A Preferred Stock Dividends”),
there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for regular quarterly dividends
publicly announced by the Company or dividends paid to the Company or other subsidiaries, by any of its subsidiaries on any class
of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.
(j) Independent
Accountants. Ernst & Young LLP, who has expressed its opinion with respect to the financial statements (which term as used
in this Agreement includes the related notes thereto) and supporting schedules filed with the Commission or incorporated by reference
as a part of the Registration Statement and included in the Prospectus, is an independent registered public accounting firm as
required by the Securities Act and the Exchange Act.
(k) Preparation
of the Financial Statements. The financial statements filed with the Commission and incorporated by reference in the Registration
Statement and included in the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries
as of and at the dates indicated and the results of their operations and cash flows for the periods specified, it being understood
that unaudited interim financial statements are subject to normal year-end adjustments. The supporting schedules included in or
incorporated in the Registration Statement present fairly the information required to be stated therein. Such financial statements
and supporting schedules have been prepared in conformity with generally accepted accounting principles as applied in the United
States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto.
No other financial statements or supporting schedules are required to be included in or incorporated in the Registration Statement.
The financial data incorporated in the Prospectus under the caption “Ratio of Earnings to Fixed Charges” fairly present
the information set forth therein on a basis consistent with that of the audited financial statements contained, incorporated or
deemed to be incorporated in the Registration Statement.
(l) 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.
(m) Incorporation
and Good Standing of the Company and its Subsidiaries. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this
Agreement. Corindus, Inc. and Corindus Security Corporation are the Company’s only significant subsidiaries (as defined in
Rule 1-02 (w) of Regulation S-X of the Exchange Act) (the “Significant Subsidiaries”). Each
Significant Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its organization and has the requisite power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus. Each of the Company and each Significant Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in the State of Massachusetts and each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in
a Material Adverse Change. Except as described in the Prospectus, all of the issued and outstanding equity interests of each Significant
Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance or claim. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the most recently ended fiscal year and other than (i) those subsidiaries not required
to be listed on Exhibit 21.1 by Item 601 of Regulation S-K under the Exchange Act and (ii) those subsidiaries formed
since the last day of the most recently ended fiscal year.
(n) Capital
Stock Matters. The Common Stock conforms in all material respects to the description thereof contained in the Prospectus. All
of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable
and have been issued in compliance in all material respects with applicable federal and state securities laws. None of the outstanding
shares of Common Stock were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe
for or purchase securities of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights
of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for,
any capital stock of the Company or any of its subsidiaries other than those accurately described in all material respects in the
Prospectus. The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options
or other rights granted thereunder, set forth in the Prospectus accurately and fairly presents in all material respects the information
required to be shown with respect to such plans, arrangements, options and rights.
(o) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws or is in default (or, with the giving of notice or lapse of time, would be in default) (“Default”)
under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject (each, an “Existing Instrument”), except for such Defaults
as would not, individually or in the aggregate, result in a Material Adverse Change. The Company’s execution, delivery and
performance of this Agreement and consummation of the transactions contemplated hereby and by the Prospectus (i) have been
duly authorized by all necessary corporate action and will not result in any violation of the provisions of the charter or by-laws
of the Company or any subsidiary, (ii) will not conflict with or constitute a breach of, or Default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries
pursuant to, or require the consent of any other party to, any Existing Instrument, except for such conflicts, breaches, Defaults,
liens, charges or encumbrances as would not, individually or in the aggregate, result in a Material Adverse Change and (iii) will
not result in any material violation of any law, administrative regulation or administrative or court decree applicable to the
Company or any subsidiary. No consent, approval, authorization or other order of, or registration or filing with, any court or
other governmental or regulatory authority or agency, is required for the Company’s execution, delivery and performance of
this Agreement and consummation of the transactions contemplated hereby and by the Prospectus, except such as have been obtained
or made by the Company and are in full force and effect under the Securities Act, applicable state securities or blue sky laws
and from the Financial Industry Regulatory Authority (“FINRA”).
(p) No Material
Actions or Proceedings. Except as disclosed in the Prospectus, there are no legal or governmental actions, suits or proceedings
pending or, to the Company’s knowledge, threatened against or affecting the Company or any of its subsidiaries, or to
which any property owned or leased by the Company or any of its subsidiaries is, or may reasonably be expected to become, the subject
of relating to environmental or discrimination matters, where in any such case such actions, suits or proceedings would reasonably
be expected to result in a Material Adverse Change or adversely affect the consummation of the transactions contemplated by this
Agreement. No material labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Company’s
knowledge, is threatened or imminent.
(q) All
Necessary Permits, etc. The Company and each subsidiary possess such valid and current certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses,
other than those the failure to possess or own would not result in a Material Adverse Change, and neither the Company nor any subsidiary
has received any written notice of proceedings relating to the revocation or modification of, or non-compliance with, any such
certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Change.
(r) Tax
Law Compliance. The Company and its consolidated subsidiaries have filed all necessary federal, state and foreign income, property
and franchise tax returns and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them except as may be being contested in good faith and by appropriate proceedings.
The Company has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section 6(k)
above in respect of all federal, state and foreign income, property and franchise taxes for all periods as to which the tax liability
of the Company or any of its consolidated subsidiaries has not been finally determined.
(s) Company
Not an “Investment Company”. The Company is not, and after receipt of payment for the Placement Shares will not
be, an “investment company” within the meaning of Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(t) Insurance.
Except as otherwise described in the Prospectus, each of the Company and its subsidiaries are insured by insurers of recognized
financial responsibility with policies in such amounts and with such deductibles and covering such risks as the Company considers
to be in accordance with customary industry practice for the business for which it is engaged and companies of comparable size,
market capitalization and stage of business. The Company has no reason to believe that it or any subsidiary will not be able (i) to
renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar
insurers as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material
Adverse Change.
(u) No Price
Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to
or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Placement Shares.
(v) Related
Party Transactions. There are no business relationships or “related-party transactions” (as defined in Item 404
of Regulation S-K under the Exchange Act) involving the Company or any subsidiary or any other person required to be described
in the Prospectus which have not been described as required.
(w) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange
Act, and, when read together with the other information in the Prospectus, at the Settlement Dates, will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(x) No Unlawful
Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any
director, officer, employee or agent of the Company or any subsidiary has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment
to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(y) Compliance
with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(z) Compliance
with OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will
not, directly or indirectly, use the proceeds of the offering of the Placement Shares hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
(aa) Company’s
Accounting System. The Company maintains a system of “internal control over financial reporting” (as such term
is defined in Rule 13a-15(f) under the Exchange Act) 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 U.S. GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. Except as set forth in the Prospectus, the Company’s internal control over financial
reporting is effective. Except as described in the Prospectus, 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.
(bb) Disclosure
Controls. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) of the Exchange
Act) 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 in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls
and procedures designed to ensure that such information is accumulated and communicated to the Company’s management to allow
timely decisions regarding disclosures. The Company has conducted evaluations of the effectiveness of its disclosure controls as
required by Rule 13a-15 of the Exchange Act.
(cc) Compliance
with Environmental Laws. Except as otherwise described in the Prospectus, and except as would not, individually or in the aggregate,
result in a Material Adverse Change (i) neither the Company nor any of its subsidiaries is in violation of any applicable
federal, state, local or foreign law or regulation relating to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum and petroleum products (collectively, “Materials of
Environmental Concern”), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern (collectively, “Environmental Laws”),
which violation includes, but is not limited to, noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company or its subsidiaries under applicable Environmental Laws, nor has the Company or any
of its subsidiaries received any written communication, whether from a governmental authority, employee or otherwise, that alleges
that the Company or any of its subsidiaries is in violation of any Environmental Law; (ii) there is no claim, action or cause
of action filed with a court or governmental authority, no investigation with respect to which the Company has received written
notice, and no written notice by any person or entity alleging potential liability for investigatory costs, cleanup costs, governmental
responses costs, natural resources damages, property damages, personal injuries, attorneys’ fees or penalties arising out
of, based on or resulting from the presence, or release into the environment, of any Material of Environmental Concern at any location
owned, leased or operated by the Company or any of its subsidiaries, now or in the past (collectively, “Environmental
Claims”), pending or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries
or any person or entity whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed
either contractually or by operation of law; and (iii) to the best of the Company’s knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, emission,
discharge, presence or disposal of any Material of Environmental Concern, that reasonably could result in a violation of any Environmental
Law or form the basis of a potential Environmental Claim against the Company or any of its subsidiaries or against any person or
entity whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually
or by operation of law.
(dd) Intellectual
Property. To the Company’s knowledge, the Company and its subsidiaries own or possess the right to use all (i) patents,
patent applications, trademarks, trademark registrations, service marks, service xxxx registrations, Internet domain name registrations,
copyrights, copyright registrations, licenses, trade secret rights (“Intellectual Property Rights”) and
(ii) inventions, software, works of authorships, trademarks, service marks, trade names, databases, formulae, know how, Internet
domain names and other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary confidential
information, systems, or procedures) (collectively, “Intellectual Property Assets”) necessary to conduct
their respective businesses as currently conducted and as proposed to be conducted and described in the Prospectus and which failure
to do so would reasonably be expected to result in a Material Adverse Change. To the Company’s knowledge, the Company and
its subsidiaries have not received any opinion from their legal counsel concluding that any activities of their respective businesses
infringe, misappropriate, or otherwise violate, valid and enforceable Intellectual Property Rights of any other person, and have
not received written notice of any challenge, which is to their knowledge still pending, by any other person to the rights of the
Company and its subsidiaries with respect to any Intellectual Property Rights or Intellectual Property Assets owned or used by
the Company or its subsidiaries. To the knowledge of the Company, the Company and its subsidiaries’ respective businesses
as now conducted do 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. All licenses for the use of the Intellectual Property Rights described in the
Prospectus are valid, binding upon, and enforceable by or against the parties thereto in accordance to its terms. The Company has
complied in all material respects with, and is not in breach nor has received any asserted or threatened claim of breach of any
Intellectual Property license, and the Company has no knowledge of any breach or anticipated breach by any other person to any
license to Intellectual Property Rights. Except as described in the Prospectus, no claim has been made against the Company alleging
the infringement by the Company of any Intellectual Property Rights of any person. The Company has taken all reasonable steps to
protect, maintain and safeguard its Intellectual Property Rights, including the execution of appropriate nondisclosure and confidentiality
agreements, except where failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of
or payment of any additional amounts with respect to, nor require the consent of any other person in respect of, the Company’s
right to own, use, or hold for use any of the Intellectual Property Rights as owned, used or held for use in the conduct of the
business as currently conducted.
(ee) FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under
the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its subsidiaries (each such
product, a “Product”), such Product is being manufactured, packaged, labeled, tested, distributed,
sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations
relating to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices,
good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of
reports, except where the failure to be in compliance would not have a Material Adverse Change. There is no pending, completed
or, to the Company’s knowledge, threatened action (including any lawsuit, arbitration, or legal or administrative or regulatory
proceeding, charge, complaint, or investigation) against the Company or any of its subsidiaries, and none of the Company or any
of its subsidiaries has received any written notice, warning letter or other communication from the FDA or any other governmental
entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of,
the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Product, (ii) withdraws its
approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional
materials relating to, any Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its subsidiaries,
(iv) enjoins production at any facility of the Company or any of its subsidiaries, (v) enters or proposes to enter into a consent
decree of permanent injunction with the Company or any of its subsidiaries, or (vi) otherwise alleges any violation of any laws,
rules or regulations by the Company or any of its subsidiaries, and which, either individually or in the aggregate, would have
a Material Adverse Change. The properties, business and operations of the Company have been and are being conducted in all material
respects in accordance with all applicable laws, rules and regulations of the FDA. The Company has not been informed by the FDA
that the FDA will prohibit the marketing, sale, license or use in the United States of any product proposed to be developed, produced
or marketed by the Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed
or proposed to be developed by the Company.
(ff) Listing.
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d)
of the Exchange Act. The Common Stock is registered pursuant to Section 12(b) or Section 12(g) of the Exchange Act and is listed
on the 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 the Exchange is contemplating terminating such registration or listing.
(gg) Brokers.
Except for Xxxxx, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s
fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(hh) No
Outstanding Loans or Other Indebtedness. Except as described in the Prospectus, there are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for
the benefit of any of the officers or directors of the Company or any of the members of any of them.
(ii) No Reliance.
The Company has not relied upon Xxxxx or legal counsel for Xxxxx for any legal, tax or accounting advice in connection with the
offering and sale of the Placement Shares.
(jj) FINRA Exemption.
To enable Xxxxx to rely on Rule 5110(b)(7)(C)(i) of FINRA, the Company represents that the Company (i) has a non-affiliate, public
common equity float of at least $150 million or a non-affiliate, public common equity float of at least $100 million and annual
trading volume of at least three million shares and (ii) has been subject to the Exchange Act reporting requirements for a period
of at least 36 months.
(kk) Compliance
with Laws. The Company has not been advised, and has no reason to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business,
except where failure to be so in compliance would not result in a Material Adverse Change.
Any certificate signed by an officer of
the Company and delivered to Xxxxx or to counsel for Xxxxx in connection with this Agreement shall be deemed to be a representation
and warranty by the Company to Xxxxx as to the matters set forth therein.
The Company acknowledges that Xxxxx and,
for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel to Xxxxx,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
7. Covenants of the Company. The Company covenants and agrees with Xxxxx that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Shares is required to be delivered by Xxxxx under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”), (i) the
Company will notify Xxxxx promptly of the time when any subsequent amendment to the Registration Statement, other than documents
incorporated by reference, has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus
has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus
or for additional information, (ii) the Company will prepare and file with the Commission, promptly upon Xxxxx’x request,
any amendments or supplements to the Registration Statement (insofar as it relates to the transactions contemplated hereby) or
Prospectus that, in Xxxxx’x reasonable opinion, may be necessary or advisable to comply with applicable law in connection
with the distribution of the Placement Shares by Xxxxx (provided, however, that the failure of Xxxxx to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect Xxxxx’x right to rely on the representations
and warranties made by the Company in this Agreement, and provided further, that the only remedy Xxxxx shall have with respect
to the failure by the Company to make such filing shall be to cease making sales under this Agreement until such amendment or supplement
is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus, other than
documents incorporated by reference, relating to the Placement Shares or a security convertible into the Placement Shares unless
a copy thereof has been submitted to Xxxxx within a reasonable period of time before the filing and Xxxxx has not reasonably objected
thereto (provided, however, that the failure of Xxxxx to make such objection shall not relieve the Company of any obligation
or liability hereunder, or affect Xxxxx’x right to rely on the representations and warranties made by the Company in this
Agreement, and provided further, that the only remedy Xxxxx shall have with respect to the failure by the Company to obtain
such consent shall be to cease making sales under this Agreement) and the Company will furnish to Xxxxx at the time of filing thereof
a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus,
except for those documents available via XXXXX; and (iv) the Company will cause each amendment or supplement to the Prospectus,
other than documents incorporated by reference, to be filed with the Commission as required pursuant to the applicable paragraph
of Rule 424(b) of the Securities Act.
(b) Notice
of Commission Stop Orders. The Company will advise Xxxxx, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c) Delivery
of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will comply with all requirements imposed
upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates (taking into
account any extensions available under the Exchange Act) all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under
the Exchange Act. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the Company will promptly notify Xxxxx to suspend the offering of Placement
Shares during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense
of the Company) so as to correct such statement or omission or effect such compliance; provided, however, that the Company may
delay any such amendment or supplement if, in the reasonable judgement of the Company, it is in the best interest of the Company
to do so. Until such time as the Company shall have corrected such statement or omission or effected such compliance, the Company
shall not request that Xxxxx resume the offering of Placement Shares.
(d) Listing
of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts to cause
the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such
jurisdictions as Xxxxx reasonably designates and to continue such qualifications in effect so long as required for the distribution
of the Placement Shares; provided, however, that the Company shall not be required in connection therewith to qualify as
a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to Xxxxx and its counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with the Commission during the Prospectus Delivery Period
(including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein),
in each case as soon as reasonably practicable and in such quantities as Xxxxx may from time to time reasonably request and, at
Xxxxx’x request, will also furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares
may be made; provided, however, that the Company shall not be required to furnish any document (other than the Prospectus)
to Xxxxx to the extent such document is available on XXXXX.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that
satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act. The Company’s compliance with the periodic
reporting requirements of the Exchange Act shall be deemed to satisfy the requirements of this Section 7(f).
(g) Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance
with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of its obligations
hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration Statement
and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation,
issuance and delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities laws in accordance
with the provisions of Section 7(d) of this Agreement, including filing fees (provided, however, that any fees or disbursements
of counsel for Xxxxx in connection therewith shall be paid by Xxxxx except as set forth in (vii) below), (iv) the printing and
delivery to Xxxxx of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the fees and
expenses incurred in connection with the listing or qualification of the Placement Shares for trading on the Exchange, (vi) the
filing fees and expenses, if any, of the Commission, (vii) the filing fees and associated legal expenses of Xxxxx’x outside
counsel for filings with the FINRA Corporate Financing Department, such legal expense reimbursement not to exceed $12,500 and,
(viii) the reasonable fees and disbursements of Xxxxx’x counsel in an amount not to exceed $50,000.
(h) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i) Notice
of Other Sales. During the pendency of any Placement Notice given hereunder, and for five (5) Trading Days following the termination
of any Placement Notice given hereunder, the Company shall provide Xxxxx notice as promptly as reasonably possible before it offers
to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other than Placement
Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Common Stock, warrants
or any rights to purchase or acquire Common Stock; provided, that such notice shall not be required in connection with (i)
the issuance, grant or sale of Common Stock options to purchase shares of Common Stock, restricted shares of Common Stock, restricted
stock units, other equity awards, or Common Stock issuable upon the exercise or vesting of options, restricted stock units or other
equity awards pursuant to any stock option, stock bonus or other stock plan or arrangement for bona fide compensatory purposes
or pursuant to any “inducement grant” or prospective employees of the Company, (ii) the issuance of securities in connection
with an acquisition, merger or sale or purchase of assets, (iii) the issuance or sale of Common Stock pursuant to any dividend
reinvestment plan that the Company may adopt from time to time provided the implementation of such plan is disclosed to Xxxxx in
advance, (iv) any shares of Common Stock issuable upon the exchange, conversion or redemption of securities or the exercise of
warrants, options or other rights in effect or outstanding or disclosed in filings by the Company available on XXXXX or otherwise
in writing to Xxxxx prior to the date of the applicable Placement Notice, (v) the issuance of Common Stock, or securities convertible
into or exercisable for Common Stock, offered and sold in a privately negotiated transaction to vendors, customers or strategic
partners or (vi) the issuance of any shares of the Company’s Series A-1 Convertible Preferred Stock, $0.0001 par value per
share, in respect of the Series A Preferred Stock Dividends. Notwithstanding the foregoing, nothing herein shall be construed to
restrict the Company’s ability, or require the Company to provide notice to Xxxxx, to file a registration statement under
the Securities Act.
(j) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice or prior to the tender of a new Placement
Notice, advise Xxxxx promptly after it shall have received notice or obtained knowledge of any information or fact that would alter
or affect in any material respect any opinion, certificate, letter or other document provided to Xxxxx pursuant to this Agreement.
(k) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by Xxxxx or its agents
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as Xxxxx may
reasonably request.
(l) Required
Filings Relating to Placement of Placement Shares. The Company agrees that on or before such dates as the Securities Act shall
require, the Company will either (i) include in its quarterly reports on Form 10-Q and its annual reports on Form 10-K, a
summary detailing, within the relevant period, the amount of Placement Shares sold through Xxxxx, the Net Proceeds to the Company
and the compensation payable by the Company to Xxxxx with respect to such Placement Shares or (ii) file a prospectus supplement
with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act (each and every filing under Rule 424(b),
a “Filing Date”), which prospectus supplement will set forth, within the relevant period, the amount
of Placement Shares sold through Xxxxx, the Net Proceeds to the Company and the compensation payable by the Company to Xxxxx with
respect to such Placement Shares, and deliver such number of copies of each such prospectus supplement to each exchange or market
on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(m) Representation
Dates; Certificate. On or prior to the First Delivery Date and each time the Company subsequently thereafter during the term
of this Agreement (i) files the Prospectus relating to the Placement Shares or amends or supplements the Registration Statement
or the Prospectus relating to the Placement Shares (other than a prospectus supplement filed in accordance with Section 7(l) of
this Agreement) by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of document(s)
by reference to the Registration Statement or the Prospectus relating to the Placement Shares; (ii) files an annual report on Form
10-K under the Exchange Act; (iii) files its quarterly reports on Form 10-Q under the Exchange Act; or (iv) files a current report
on Form 8-K containing amended financial information (other than a filing made in connection with the issuance of an earnings release
or other information “furnished” under Items 2.02 or 7.01 of Form 8-K) under the Exchange Act (each date of filing
of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation Date”);
the Company shall furnish Xxxxx with a certificate, in the form attached hereto as Exhibit 7(m) within three (3) Trading
Days of any Representation Date if requested by Xxxxx. The requirement to provide a certificate under this Section 7(m) shall be
automatically waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall
continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter
shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that such
waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding the
foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied
on such waiver and did not provide Xxxxx with a certificate under this Section 7(m), then before the Company delivers the
Placement Notice or Xxxxx sells any Placement Shares, the Company shall provide Xxxxx with a certificate, in the form attached
hereto as Exhibit 7(m), dated the date of the Placement Notice.
(n) Legal
Opinion. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver
is applicable, the Company shall cause to be furnished to Xxxxx a written opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. (“Company Counsel”), or other counsel satisfactory to Xxxxx, in form and substance reasonably satisfactory
to Xxxxx and its counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached
hereto as Exhibit 7(n)(i) and Exhibit 7(n)(ii), respectively, modified, as necessary, to relate to the Registration
Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinions for
subsequent Representation Dates, counsel may furnish Xxxxx with a letter (a “Reliance Letter”) to the
effect that Xxxxx may rely on a prior opinion delivered under this Section 7(n) to the same extent as if it were dated the
date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation Date).
(o) Comfort
Letter. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect to
which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver
is applicable, the Company shall cause its independent accountants to furnish Xxxxx letters (the “Comfort Letters”),
dated the date the Comfort Letter is delivered, in form and substance reasonably satisfactory to Xxxxx, (i) confirming that they
are an independent registered public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of
such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered
by accountants’ “comfort letters” to Xxxxx in connection with registered public offerings (the first such letter,
the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that
would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(p) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase the Placement Shares to be issued and
sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Placement Shares other than Xxxxx;
provided, however, that the Company may bid for and purchase shares of its Common Stock in accordance with Rule 10b-18
under the Exchange Act.
(q) Insurance.
The Company and its subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering such risks as
is reasonable and customary for the business in which it is engaged.
(r) Compliance
with Laws. The Company and each of its subsidiaries shall use commercially reasonable efforts to maintain, or cause to be maintained,
all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct
their businesses as described in the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or
cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable
environmental laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations would
not reasonably be expected to result in a Material Adverse Change.
(s) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act, assuming no change in the Commission’s current interpretations as to entities that
are not considered an investment company.
(t) Securities
Act and Exchange Act. The Company will use its reasonable best efforts to comply with all requirements imposed upon it by the
Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or
dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(u) No Offer
to Sell. Other than the Prospectus and any free writing prospectus (as defined in Rule 405 under the Securities Act) approved
in advance by the Company and Xxxxx in its capacity as principal or agent hereunder, neither Xxxxx nor the Company (including its
agents and representatives, other than Xxxxx in its capacity as such) will make, use, prepare, authorize, approve or refer to any
written communication (as defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes
an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(v) Xxxxxxxx-Xxxxx
Act. The Company and its subsidiaries will use their reasonable best efforts to comply with all effective and applicable provisions
of the Xxxxxxxx-Xxxxx Act.
8. Conditions to Xxxxx’x Obligations. The obligations of Xxxxx hereunder with respect to a Placement will be subject
to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due performance
by the Company of its obligations hereunder, to the completion by Xxxxx of a due diligence review satisfactory to Xxxxx in its
reasonable judgment, and to the continuing satisfaction (or waiver by Xxxxx in its sole discretion) of the following additional
conditions:
(a) Registration
Statement Effective. The Registration Statement (or a successor registration statement) shall be effective and shall be available
for (i) all sales of Placement Shares issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Shares
contemplated to be issued by any Placement Notice.
(b) No Material
Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of its subsidiaries
of any request for additional information from the Commission or any other federal or state governmental authority during the period
of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or supplements
to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration Statement or the
Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in the Registration Statement, related Prospectus or such documents so that, in the
case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of
the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(c) No Misstatement
or Material Omission. Xxxxx shall not have advised the Company that the Registration Statement or Prospectus, or any amendment
or supplement thereto, contains an untrue statement of fact that in Xxxxx’x reasonable opinion is material, or omits to state
a fact that in Xxxxx’x opinion is material and is required to be stated therein or is necessary to make the statements therein
not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there
shall not have been any material adverse change, on a consolidated basis, in the authorized capital stock of the Company or any
Material Adverse Change or any development that could reasonably be expected to result in a Material Adverse Change, or any downgrading
in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by any rating
organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of
the Company’s securities (other than asset backed securities), the effect of which, in the case of any such action by a rating
organization described above, in the reasonable judgment of Xxxxx (without relieving the Company of any obligation or liability
it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement
Shares on the terms and in the manner contemplated in the Prospectus.
(e) Company
Counsel Legal Opinion. Xxxxx shall have received the opinions of Company Counsel required to be delivered pursuant to Section
7(n) on or before the date on which such delivery of such opinion is required pursuant to Section 7(n).
(f) Xxxxx
Counsel Legal Opinion. Xxxxx shall have received from Xxxxx Xxxxxx LLP, counsel for Xxxxx, such opinion or opinions, on or
before the date on which the delivery of the Company Counsel legal opinion is required pursuant to Section 7(n), with respect
to such matters as Xxxxx may reasonably require, and the Company shall have furnished to such counsel such documents as they request
for enabling them to pass upon such matters.
(g) Comfort
Letter. Xxxxx shall have received the Comfort Letter required to be delivered pursuant to Section 7(o) on or before
the date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(h) Representation
Certificate. Xxxxx shall have received the certificate required to be delivered pursuant to Section 7(m) on or
before the date on which delivery of such certificate is required pursuant to Section 7(m).
(i) Secretary’s
Certificate. On or prior to the First Delivery Date, Xxxxx shall have received a certificate, signed on behalf of the Company
by its corporate Secretary, in form and substance satisfactory to Xxxxx and its counsel.
(j) No Suspension.
Trading in the Common Stock shall not have been suspended on the Exchange.
(k) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company
shall have furnished to Xxxxx such appropriate further information, certificates and documents as Xxxxx may have reasonably requested.
All such opinions, certificates, letters and other documents shall have been in compliance with the provisions hereof. The Company
will furnish Xxxxx with such conformed copies of such opinions, certificates, letters and other documents as Xxxxx shall have reasonably
requested.
(l) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
(m) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice of
issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior
to, the issuance of any Placement Notice.
(n) No Termination
Event. There shall not have occurred any event that would permit Xxxxx to terminate this Agreement pursuant to Section 11(a).
9. Indemnification and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless Xxxxx, the directors, officers, partners, employees and
agents of Xxxxx and each person, if any, who (i) controls Xxxxx within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, or (ii) is controlled by or is under common control with Xxxxx (a “Xxxxx Affiliate”)
from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable
investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance
with Section 9(c)) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties
or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which Xxxxx,
or any such person, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly
or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or in any free writing prospectus
or in any application or other document executed by or on behalf of the Company in connection with this Agreement or based on written
information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Common Stock under the securities
laws thereof or filed with the Commission, (y) the omission or alleged omission to state in any such document a material fact required
to be stated in it or necessary to make the statements in it not misleading in light of the circumstances under which they were
made (except with respect to the Registration Statement) or (z) any breach by any of the indemnifying parties of any of their respective
representations, warranties and agreements contained in this Agreement; provided, however, that this indemnity agreement
shall not apply to the extent that such loss, claim, liability, expense or damage arises from the sale of the Placement Shares
pursuant to this Agreement and is caused directly or indirectly by an untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with the Agent’s Information. This indemnity agreement will be in addition
to any liability that the Company might otherwise have.
(b) Xxxxx
Indemnification. Xxxxx agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company
from and against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 9(a),
as and when incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Agent’s Information.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results
in the forfeiture or material impairment of substantive rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified
party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly as they are incurred after the indemnifying party receives a written invoice relating to such fees, disbursements and
other charges. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without
its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated
by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising or that may arise out of such claim, action
or proceeding.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or Xxxxx, the Company and Xxxxx will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than
Xxxxx, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed the
Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company and Xxxxx may
be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand
and Xxxxx on the other. The relative benefits received by the Company on the one hand and Xxxxx on the other hand shall be deemed
to be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received
by the Company bear to the total compensation received by Xxxxx from the sale of Placement Shares on behalf of the Company. If,
but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Company, on the one hand, and Xxxxx, on the other, with respect to the statements or omission
that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or Xxxxx, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and Xxxxx agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 9(d)
shall be deemed to include, for the purpose of this Section 9(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section
9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), Xxxxx shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 9(d), any person who controls a party to this Agreement
within the meaning of the Securities Act, and any officers, directors, partners, employees or agents of Xxxxx, will have the same
rights to contribution as that party, and each officer of the Company who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made
under this Section 9(d), will notify any such party or parties from whom contribution may be sought, but the omission to
so notify will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may
have under this Section 9(d) except to the extent that the failure to so notify such other party materially prejudiced the
substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to
the last sentence of Section 9(c) hereof, no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 9(c) hereof.
10. Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section
9 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of Xxxxx, any controlling
persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of
the Placement Shares and payment therefor or (iii) any termination of this Agreement.
11. Termination.
(a) Xxxxx shall
have the right by giving written notice as hereinafter specified at any time to terminate this Agreement if (i) any Material Adverse
Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred that, in the reasonable
judgment of Xxxxx, may materially impair the ability of Xxxxx to sell the Placement Shares hereunder, (ii) the Company shall have
failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided, however, in the
case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion, or letter required
under Sections 7(m), 7(n), or 7(o), Xxxxx’x right to terminate shall not arise unless such failure to
deliver (or cause to be delivered) continues for more than thirty (30) days from the date such delivery was required; (iii) any
other condition of Xxxxx’x obligations hereunder is not fulfilled; provided, however, Xxxxx’x right to
terminate pursuant to this Section 11(a)(iii) shall not arise unless such condition, if capable of being fulfilled, is not
fulfilled within ten (10) days after the date the Company is provided with written notice by Xxxxx that such condition has not
been fulfilled, or (iv), any suspension or limitation of trading in the Placement Shares or in securities generally on the Exchange
shall have occurred. Any such termination shall be without liability of any party to any other party except that the provisions
of Section 7(g) (Expenses), Section 9 (Indemnification and Contribution), Section 10 (Representations and
Agreements to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury
Trial) hereof shall remain in full force and effect notwithstanding such termination. If Xxxxx elects to terminate this Agreement
as provided in this Section 11(a), Xxxxx shall provide the required written notice as specified in Section 12 (Notices).
(b) The
Company shall have the right (i) to terminate this Agreement by giving two (2) days’ notice as hereinafter specified and,
(ii) if the Company intends to consummate a registered direct or public offering using the Registration Statement (a “Shelf
Takedown”) with an aggregate offering amount that may exceed the sum of (x) the then-available offering amount under
the Registration Statement minus (y) the then-available offering amount under this Agreement, then the Company may terminate
this Agreement or reduce the available offering amount under this Agreement immediately upon written notice to Xxxxx, in each
case, in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section
16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(c) Xxxxx shall
have the right, by giving two (2) days’ notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section
17 hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through Cowen on the terms and subject to the conditions set forth herein; provided that
the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall
remain in full force and effect notwithstanding such termination.
(e) This Agreement
shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c), or (d) above
or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall
in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 16 and Section
17 shall remain in full force and effect. Upon termination of this Agreement, the Company shall not have any liability to Cowen
for any discount, commission or other compensation with respect to any Placement Shares not sold through Cowen pursuant to this
Agreement.
(f) Any termination
of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of receipt of such notice by Cowen or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement.
12. Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to Cowen, shall be
delivered to Cowen at Xxxxx and Company, LLC, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, fax no. 000-000-0000, Attention: General
Counsel with a copy to Xxxxx Xxxxxx LLP, attention: Xxxxx X. Xxxxx, e-mail xxxxxxx@xxxxxxxxxxx.xxx; or if sent to the Company,
shall be delivered to Corindus Vascular Robotics, Inc. attention: Xxxxx X. Xxxx, Chief Financial Officer, e-mail: Xxxxx.Xxxx@xxxxxxxx.xxx
with a copy to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., attention: Xxxxxxx X. Xxxxx, Esq., e-mail: xxxxxxx@xxxxx.xxx.
Each party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of
a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day
(as defined below), or, if such day is not a Business Day on the next succeeding Business Day, (ii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the
U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business
Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
13. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Cowen and
their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 9 hereof.
References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of
such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or
their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without
the prior written consent of the other party; provided, however, that Cowen may assign its rights and obligations
hereunder to an affiliate of Cowen without obtaining the Company’s consent.
14. Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this
Agreement shall be adjusted to take into account any stock consolidation, stock split, stock dividend, recapitalization or similar
event effected with respect to the Common Stock.
15. Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and
Placement Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements
and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument executed by the Company and Cowen. In the event that
any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the
fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be
construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that
giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of
the parties as reflected in this Agreement.
16. Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits
to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action
or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such
party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.
17. Waiver of Jury Trial. The Company and Cowen each hereby irrevocably waives any right it may have to a trial by jury
in respect of any claim based upon or arising out of this Agreement or any transaction contemplated hereby.
18. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Cowen has
been retained solely to act as sales agent in connection with the sale of the Placement Shares and that no fiduciary, advisory
or agency relationship between the Company and Cowen has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether Cowen has advised or is advising the Company on other matters;
(b) the Company
is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) the Company
has been advised that Cowen and its affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company and that Cowen has no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship; and
(d) the Company
waives, to the fullest extent permitted by law, any claims it may have against Cowen for breach of fiduciary duty or alleged breach
of fiduciary duty in connection with the transactions contemplated by this Agreement and agrees that Cowen shall have no liability
(whether direct or indirect) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty claim
on behalf of or in right of the Company, including stockholders, partners, employees or creditors of the Company.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other
may be made by facsimile or electronic transmission.
20. Definitions. As used in this Agreement, the following term has the meaning set forth below:
(a) “Agent’s
Information” means, solely the following information in the Prospectus: the third sentence of the eighth paragraph under
the caption “Plan of Distribution” in the Prospectus.
(b) “subsidiary”
has the meaning set forth in Rule 405 of the Securities Act.
21. Headings; Construction. The section and exhibit headings herein are for convenience only and shall not affect the
construction hereof. Each reference in this Agreement to any Section or Schedule shall be to such Section or Schedule of this Agreement,
unless the context indicates otherwise.
[Remainder of Page Intentionally Blank]
If the foregoing correctly
sets forth the understanding between the Company and Cowen, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and Cowen.
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Very truly yours, |
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XXXXX AND COMPANY, LLC |
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By: |
/s/ Xxxxxxx Xxxxxx |
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Name: Xxxxxxx Xxxxxx |
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Title: Director |
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ACCEPTED as of the date |
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first-above written: |
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CORINDUS VASCULAR ROBOTICS, INC. |
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By: |
/s/ Xxxxx X. Xxxx |
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Name: Xxxxx X. Xxxx |
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Title: Chief Financial Officer |
SCHEDULE 1
form
of PLACEMENT NOTICE
Cc: | [ ] |
To: | [ ] |
Subject: | Cowen
at the Market Offering—Placement Notice |
Date: | _______________,
20___ |
Gentlemen:
Pursuant to the terms
and subject to the conditions contained in the Sales Agreement between Corindus Vascular Robotics, Inc., a Delaware corporation
(the “Company”), and Xxxxx and Company, LLC (“Cowen”) dated August 31, 2018 (the “Agreement”),
I hereby request on behalf of the Company that Cowen sell up to [ ] shares of the Company’s common stock, par value $0.0001
per share, at a minimum market price of $_______ per share. Sales should begin on the date of this Notice and shall continue until
[DATE] [all shares are sold].
SCHEDULE 2
Notice Parties
The Company
Xxxx Xxxxxx |
Chief Executive Officer |
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Xxxxx Xxxx |
Chief Financial Officer |
Xxxxx
Xxxxxxx X. Xxxxxx |
Director |
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Xxxxxxx Xxxxxx |
Director |
SCHEDULE 3
Compensation
Cowen shall be paid compensation equal to
3.0% of the gross proceeds from the sales of Placement Shares pursuant to the terms of this Agreement.
Exhibit 7(n)(i)
[Matters
to be covered by initial OPINION OF
COMPANY’S COUNSEL]
| (i) | As of August 31, 2018, the Company had an authorized capitalization
as set forth in its statements of financial condition included or incorporated by reference in the Prospectus. All of the outstanding
shares of Common Stock conform, in all material respects, to the description thereof contained in the Prospectus. |
| (ii) | The Company is a corporation in good standing under the laws of the
State of Delaware. The Company has the corporate power to own, lease and operate its properties and conduct its business in all
material respects as described under the headings “Item 1 Business” and “Item 2 Properties” in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2017. |
| (iii) | The Company is duly qualified and is in good standing as a foreign
corporation authorized to do business in the Commonwealth of Massachusetts. |
| (iv) | The execution, delivery and performance of the Sales Agreement by
the Company and the transactions contemplated thereby do not result in any breach of, or constitute a default under (nor constitute
an event that with notice, lapse of time or both would constitute a breach of or default under), (i) the charter or bylaws of the
Company, (ii) any agreement listed on Schedule 1 hereto or (iii) to our knowledge, any Applicable Law or any decree, judgment or
order applicable to the Company (other than state and foreign securities or blue sky laws, as to which we express no opinion) in
each case that, in our experience, is normally applicable to transactions of the type contemplated by the Sales Agreement, except
in the case of clauses (ii) and (iii) for such conflicts, breaches or defaults, which individually or in the aggregate would not
be reasonably expected to have a Material Adverse Change. |
| (v) | The Company has the corporate power to execute and deliver the Sales
Agreement and to issue, sell and deliver the Common Stock as contemplated in the Sales Agreement. The Sales Agreement has been
duly authorized, executed and, so far as is known to us, delivered by the Company. |
| (vi) | No approval, authorization, consent or order of, or filing with,
any federal or state governmental or regulatory commission, board, body, authority or agency is required under Applicable Law in
connection with the execution, delivery and performance of the Sales Agreement, or the consummation of the transactions contemplated
thereby, by the Company, other than under the Securities Act or the Securities Exchange Act of 1934, as amended, and such approvals
required in connection with the listing of the Placement Shares on the NYSE American; provided, however, that we do not
express any opinion as to any necessary qualification under the securities or blue sky laws of the various jurisdictions in which
the Placement Shares are being offered by Cowen or any approval of the underwriting terms and arrangements relating to the offering
of the Placement Shares by the FINRA. |
| (vii) | The Common Stock, when issued and delivered by the Company pursuant
to the terms of the Sales Agreement against payment of the consideration set forth therein, will be duly authorized, validly issued,
fully paid and nonassessable. |
| (viii) | The issuance and sale of the Placement Shares by the Company is not
subject to preemptive or other similar rights arising under the Charter or Bylaws of the Company or under any agreement listed
in Schedule 1 hereto. |
| (ix) | To our knowledge, except as otherwise described in the Registration
Statement, the Prospectus, the documents incorporated therein by reference or the exhibits filed in connection therewith, there
are no persons with registration or other similar rights to have any securities registered pursuant to the Registration Statement,
except for persons who have waived such rights or who have been given proper notice and have failed to execute such rights within
the time or times required under the terms and conditions of such right. |
| (x) | At the time the Registration Statement became effective, the Registration
Statement and, as of the date of the Sales Agreement and the date hereof, the Prospectus (in each case, other than the financial
statements, financial schedules and other financial and statistical data included or incorporated by reference in, or excluded
from, the Registration Statement and the Prospectus, as to which we express no opinion) each appeared on its face to comply as
to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission promulgated
thereunder. For purposes of this paragraph, we have assumed that the statements made or incorporated by reference in the Registration
Statement and Prospectus are correct and complete. |
| (xi) | The statements under the caption “Description of Capital Stock”
in the Prospectus, insofar as such statements constitute a summary of the legal matters referred to therein, fairly summarize the
matters set forth therein in all material respects as of the date of such statements. |
| (xii) | To our knowledge, there are no actions, suits or proceedings or inquiries
or investigations, pending or threatened, against the Company or any of its officers and directors or to which the Company’s
assets (excluding the Company’s direct or indirect interests in its subsidiaries) are subject, at law or in equity, before
or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitration panel or
agency that are required to be described in the Prospectus or the documents incorporated therein by reference but are not so described.
|
| (xiii) | The Company is not an “investment company” required to
register under the Investment Company Act of 1940, as amended, (the “1940 Act”) or a company “controlled”
by an “investment company” within the meaning of the 1940 Act. |
| (xiv) | The Common Stock to be issued and sold by the Company pursuant to
the Sales Agreement are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the NYSE
American. |
| (xv) | The Registration Statement became effective under the Securities
Act on May 1, 2017 and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued
under the Securities Act or proceedings therefor initiated or threatened by the Commission. |
In addition, we have
reviewed the Registration Statement and the Prospectus and participated in conferences with officers and other representatives
of the Company, representatives of independent public accountants for the Company at which the contents of the Registration Statement
and the Prospectus and related matters were discussed, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and
the Prospectus and have not made any independent check or verification thereof, during the course of such participation, nothing
has come to our attention that leads us to believe that the Registration Statement, at the time such Registration Statement became
effective and as of the date of the Sales Agreement, contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the
date of the Sales Agreement or the date hereof, included or includes an untrue statement of a material fact or omitted or omits
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 (it being understood that we express no belief with respect to the financial statements, financial schedules
and other financial or statistical data included or incorporated by reference in, or excluded from, the Registration Statement
or the Prospectus).
The limitations inherent
in the independent verification of factual matters and the character of determinations involved in the preparation of a disclosure
document are such, however, that we do not assume any responsibility, except as otherwise stated in opinion 11. above, for the
accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus or any amendments or
supplements thereto (including any of the documents incorporated by reference therein).
Exhibit 7(n)(ii)
Matters
to be covered by subsequent Company Counsel Opinions
The Registration Statement,
when it became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission,
complied as to form in all material respects with the requirements for registration statements on Form S-3 under the Securities
Act and the rules and regulations of the Commission thereunder, and each of the documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, on the date of filing thereof with the Commission, complied
as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder;
it being understood, however, that we express no opinion with respect to the financial statements, schedules or other financial
or statistical data included or incorporated by reference in, or omitted from, the Registration Statement or the Prospectus or
any other document. In passing upon the compliance as to form of the Registration Statement and the Prospectus and any other document,
we have assumed that the statements made and incorporated by reference therein are correct and complete.
(a) The
Registration Statement became effective under the Securities Act on May 1, 2017 and, to our knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under the Securities Act or proceedings therefor initiated or threatened
by the Commission.
(b) To
our knowledge, there are no actions, suits or proceedings or inquiries or investigations, pending or threatened, against the Company
or any of its officers and directors or to which the Company’s assets (excluding the Company’s direct or indirect interests
in its subsidiaries) are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority, arbitration panel or agency that are required to be described in the Prospectus or the documents
incorporated therein by reference but are not so described.
In addition, we have
participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants
for the Company, and your representatives, at which the contents of the Registration Statement and the Prospectus and related matters
were discussed and, although we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained or incorporated by reference in the Registration Statement and the Prospectus, during the course of
such participation, no facts came to our attention that caused us to believe that the Registration Statement, at the time it became
effective and as of the date hereof, contained an untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus (including the Incorporated
Documents), as of its date and as of the date hereof, contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it
being understood that we express no belief with respect to the financial statements, schedules and other financial and statistical
data included or incorporated by reference in the Registration Statement or the Prospectus.
* Note: “Registration
Statement” and “Prospectus” will be defined to include documents incorporated by reference therein (“Incorporated
Documents”).
Exhibit 7(m)
OFFICER CERTIFICATE
The undersigned, the duly qualified and
elected _______________________, of Corindus Vascular Robotics, Inc. (“Company”), a Delaware corporation,
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement dated
August 31, 2018 (the “Sales Agreement”) between the Company and Xxxxx and Company, LLC, that to the best
of the knowledge of the undersigned.
(i) The
representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations
and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Change
(as defined in the Sales Agreement), are true and correct on and as of the date hereof with the same force and effect as if expressly
made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and
which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications
or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with
the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that
speak solely as of a specific date and which were true and correct as of such date; and
(ii) The
Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied
pursuant to the Sales Agreement at or prior to the date hereof.