Exhibit 1.2
CELLECTAR BIOSCIENCES, INC.
EQUITY DISTRIBUTION
AGREEMENT
May 24, 2024
XXXXX XXXXXXX & CO.
U.S. Bancorp Center
800 Nicollet Mall
Minneapolis, Minnesota 55402
Ladies and Gentlemen:
As further set forth in this
agreement (this “Agreement”), Cellectar Bioscience, Inc., a company organized under the laws of Delaware (the
“Company”), proposes to issue and sell from time to time through Xxxxx Xxxxxxx & Co. (the “Agent”),
as sales agent, the Company’s common stock, par value $0.00001 per share (the “Common Stock”) (such shares
of Common Stock to be sold pursuant to this Agreement, the “Shares”) on terms set forth herein. Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitation set forth in Section 2 of
this Agreement on the number of Shares issued and sold under this Agreement shall be the sole responsibility of the Company, and the Agent
shall have no obligation in connection with such compliance.
The Company hereby confirms
its agreement with the Agent with respect to the sale of the Shares.
1. Representations
and Warranties of the Company.
(a) The
Company represents and warrants to, and agrees with, the Agent that as of the date of this Agreement, each Representation Date (as defined
in Section 3(o) below), each date on which a Placement Notice (as defined in Section 2(a)(i) below) is given (each, a “Notice
Date”), each date on which Shares are sold hereunder (each, an “Applicable Time”), and each Settlement
Date (as defined in Section 2(a)(vii) below) as follows:
(i) Registration
Statement and Prospectus. The Company will file or 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
Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3, 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 sales agreement prospectus included as part of such registration statement
specifically relating to the offering of the Shares pursuant to this Agreement (the “ATM Prospectus”). The
Company has furnished to the Agent, for use by Agent, copies of the ATM Prospectus relating to the Shares. Except where the context
otherwise requires, such registration statement, 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, is herein called the “Registration Statement.” The ATM
Prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be
supplemented by a prospectus supplement, in the form in which such ATM 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 (“Rule
433”), relating to the Shares, if any, 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”).
(ii) Continuing
Effectiveness of Registration Statement. The Registration Statement and any registration statement filed pursuant to Rule 462(b) under
the Securities Act (each, a “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 Shares
hereunder meets the requirements of General Instruction I.B.1. or I.B.6 of Form S-3.
(iii) No Material Misstatements or Omissions. 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, and as of each Settlement Date (as defined in Section 2(a)(vii) below),
complied in all material respects with the Securities Act, and as of each effective date and each Settlement Date, 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
Settlement Date, 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 the Agent furnished to the
Company in writing by the Agent expressly for use therein, it being understood and agreed that the only such information consists of
the information described in Section 5(b). 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.
(iv) Eligible
Issuer. The Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated
by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined
in Rule 433 under the Securities Act) related to the offering of the Shares contemplated hereby is solely the property of the Company.
(v) [Reserved.]
(vi) Financial
Statements. The historical financial statements (including the related notes and supporting schedules) to be included or incorporated
by reference, in the Registration Statement, and the Prospectus comply as to form in all material respects with the requirements of Regulation
S-X under the Securities Act (“Regulation S-X”) and present fairly in all material respects the financial condition,
results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have
been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout
the periods involved. All disclosures contained in the Registration Statement and Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange
Act and Item 10 of Regulation S-K of the Act, to the extent applicable. There are no financial statements (historical or pro forma) that
are required to be included in the Registration Statement or the Prospectus that are not so included as required. The interactive data
in eXtensible Business Reporting Language (“XBRL”) included or incorporated by reference in the Registration
Statement and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance with
the Commission’s rules and guidelines applicable thereto.
(vii) No
Off-Balance Sheet Transactions. There are no transactions, arrangements and other relationships between and/or among the
Company, and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited
to, any structural finance, special purpose or limited purpose entity (each, an “Off-Balance Sheet
Transaction”) that could reasonably be expected to affect materially the Company’s liquidity or the availability
of or requirements for its capital resources, including those Off Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056;
34-45321; FR-61), and are required to be described in the Prospectus, which have not been described as required.
(viii) Auditor
Independence. Xxxxx Xxxxx US, LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries
(the “Subsidiaries”), whose report appears in the Registration Statement and the Prospectus, are independent
public accountants as required by the Securities Act and the Public Accounting Oversight Board.
(ix) No
Material Adverse Effect. The Company and each of its Subsidiaries (a complete list of the Subsidiaries is included as Schedule
4 hereto) has been duly organized, validly existing as a corporation and in good standing under the laws of their respective
jurisdictions of organization. The Company and each of its Subsidiaries are, and will be, duly licensed or qualified as a foreign
corporation for transaction of business and in good standing under the laws of each other jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses requires such license or qualification, and have all
corporate power and authority necessary to own or hold their respective properties and to conduct their respective businesses as
described in the Registration Statement and the Prospectus, except where the failure to be so qualified or in good standing or have
such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
“Material Adverse Effect” shall mean any material adverse change or effect, or any development involving a
prospective material adverse change or effect, on or affecting (i) the business, earnings, assets, liabilities, prospects, condition
(financial or otherwise), operations, general affairs, management, financial position, stockholders’ equity or results of
operations of the Company and the Subsidiaries taken as a whole, or (ii) the ability of the Company to perform its obligations under
this Agreement, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Prospectus. 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 fiscal year ended December 31, 2023.
(x) Capitalization. The Company has an authorized capitalization as set forth in each
of the Registration Statement and the Prospectus, and all of the issued shares of the Company have been duly authorized and validly
issued, are fully paid and non-assessable, conform in all material respects to the description thereof contained in the Registration
Statement and the Prospectus and were not issued in violation of any preemptive right, resale right, right of first refusal or
similar right. All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of
the Company’s capital stock have been duly authorized and validly issued, and conform in all material respects to the
description thereof contained in the Registration Statement and the Prospectus. All of the issued shares of capital stock or other
ownership interest of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such
liens, encumbrances, equities or claims as would not, individually or in the aggregate, result in a Material Adverse Effect.
(xi) Due
Authorization, Xxxxx Xxxxxxxx and Non-Assessiblity of Shares. The Shares to be issued and sold by the Company to the Agent hereunder
have been duly authorized and, upon payment and delivery in accordance with this Agreement, will be validly issued, fully paid and non-assessable,
will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus, will be
issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of
first refusal and similar rights.
(xii) Authority
to Enter into this Agreement. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations
under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(xiii) Non-Contravention.
The issue and sale of the Shares, the execution, delivery and performance of this Agreement by the Company, the consummation of the transactions
contemplated hereby and the application of the proceeds from the sale of the Shares as described under “Use of Proceeds” in
the Registration Statement and the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company and its subsidiaries, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject; (ii) result in any violation of the provisions of the articles of association,
charter or by-laws (or similar organizational documents) of the Company or any of its subsidiaries; or (iii) result in any violation
of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties or assets, except, with respect to clauses (i) and (iii), for such conflicts,
breaches, violations, liens, charges, encumbrances or defaults that would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(xiv) No Consent or Approval Required. No consent, approval, authorization or order of,
or filing, registration or qualification with, any court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets is required for the issue and sale of the Shares, the execution, delivery
and performance of this Agreement by the Company, the consummation of the transactions contemplated hereby, the application of the
proceeds from the sale of the Shares as described under “Use of Proceeds” in the Registration Statement and the
Prospectus, except for (i) the registration of the Shares under the Securities Act; (ii) such consents, approvals, authorizations,
orders, filings, registrations or qualifications as may be required under the Exchange Act, and applicable state or foreign
securities laws and/or the bylaws and rules of the Financial Industry Regulatory Authority (the “FINRA”)
in connection with the sale of the Shares by the Agent; and (iii) the inclusion of the Shares on the Nasdaq Capital Market (the “Exchange”).
(xv) Internal
Controls. The Company and each of its subsidiaries maintain a system of “internal controls over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United
States, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit
preparation of the Company’s financial statements in conformity with generally accepted accounting principles in the United States
and to maintain accountability for its assets, (iii) access to the Company’s assets is permitted only in accordance with management’s
general or specific authorization, (iv) the recorded accountability for the Company’s assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any differences, and (v) the interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus fairly present the information
called for in all material respects and are prepared in accordance with the Commission's rules and guidelines applicable thereto. Except
as disclosed in the Registration Statement or the Prospectus, as of the date of the most recent balance sheet of the Company and its consolidated
subsidiaries audited by Xxxxx Xxxxx US, LLP, there were no “significant deficiencies” or “material weaknesses”
(each as defined by the Public Company Accounting Oversight Board) in the Company’s internal controls over financial reporting,
or any fraud, whether or not material, that involves management or other employees of the Company and its subsidiaries who have a significant
role in the Company’s internal controls; and since the end of the latest audited fiscal year, there has been no change in the Company’s
internal control over financial reporting (whether or not remediated) that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting. The Company’s board of directors has, subject to the exceptions,
cure periods and the phase in periods specified in the Exchange rules (“Exchange Rules”), validly appointed
an audit committee to oversee internal accounting controls whose composition satisfies the applicable requirements of the Exchange Rules
and the Company’s board of directors and/or the audit committee has adopted a charter that satisfies the requirements of the Exchange
Rules.
(xvi) Disclosure
Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as
defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has 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
as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(xvii) Critical Accounting Policies. The section entitled “Critical Accounting Policies” incorporated by reference in the
Registration Statement and the Prospectus accurately describes in all material respects (i) the accounting policies that the Company believes
are the most important in the portrayal of the Company’s financial condition and results of operations and that require management’s
most difficult, subjective or complex judgments (“Critical Accounting Policies”); (ii) the judgments and uncertainties
affecting the application of Critical Accounting Policies; and (iii) the likelihood that materially different amounts would be reported
under different conditions or using different assumptions, and an explanation thereof.
(xviii) Xxxxxxxx-Xxxxx
Compliance. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s
directors or officers, in their capacities as such, to comply in all materials respects with any provision of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated in connection therewith that are applicable to the Company or its directors or officers
in their capacities as directors or officers of the Company.
(xix) Exceptions.
Except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, since the date of the latest audited
financial statements included in the Registration Statement and the Prospectus, and, except as disclosed in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries has (i) sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action,
order or decree, (ii) issued or granted any securities (other than pursuant to employee benefit plans, qualified stock option plans or
other equity compensation plans or arrangements existing on the date hereof and disclosed in the Registration Statement and the Prospectus
(the “Specified Equity Plans”)), (iii) incurred any material liability or obligation, direct or contingent,
other than liabilities and obligations that were incurred in the ordinary course of business, (iv) entered into any material transaction
not in the ordinary course of business, or (v) declared or paid any dividend on its share capital; and since such date, except as disclosed
in the Registration Statement and the Prospectus, there has not been any change in the share capital, long-term debt, net current assets
or short-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse
change, in or affecting the condition (financial or otherwise), results of operations, shareholders’ equity, properties, management,
business or prospects of the Company and its subsidiaries taken as a whole.
(xx) Valid
Title. The Company and each of its subsidiaries have good and marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, that are material to the business of the Company, in each case free and clear of all liens,
encumbrances and defects, except such liens, encumbrances and defects as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries. All assets held under
lease by the Company and its subsidiaries, that are material to the business of the Company, are held by them under valid, subsisting
and enforceable leases, with such exceptions as do not materially interfere with the use made and proposed to be made of such assets by
the Company and its subsidiaries.
(xxi) Intellectual
Property. The Company and each of its subsidiaries owns, possesses, or can acquire on reasonable terms, all Intellectual
Property necessary for the conduct of the Company’s and it subsidiaries’ business as now conducted or as proposed to be
conducted, as described in the Registration Statement and the Prospectus, except where the failure to own, possess or acquire such
rights would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Furthermore, except as
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (A) to the knowledge of the
Company, there is no infringement, misappropriation or violation by third parties of any such Intellectual Property; (B) there is no
pending or, to the knowledge of the Company, threatened, action, suit, proceeding or claim by others challenging the Company’s
or any of its subsidiaries’ rights in or to any such Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (C) the Intellectual Property owned by the Company and its subsidiaries, and to
the knowledge of the Company, the Intellectual Property licensed to the Company and its subsidiaries, has not been adjudged invalid
or unenforceable, in whole or in part, and there is no pending or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (D) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others that the Company or any of its subsidiaries infringes, misappropriates or
otherwise violates any Intellectual Property or other proprietary rights of others, neither the Company or any of its subsidiaries
has received any written notice of such claim and the Company is unaware of any other fact which would form a reasonable basis for
any such claim; (E) to the Company’s knowledge, no employee of the Company or any of its subsidiaries is in or has ever been
in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the
basis of such violation relates to such employee’s employment with the Company nor any of its subsidiaries or actions
undertaken by the employee while employed with the Company or any of its subsidiaries; (F) there is no prior art or public or
commercial activity of which the Company is aware that may render any patent included in the Intellectual Property invalid or that
would preclude the issuance of any patent on any patent application included in the Intellectual Property, which has not been
disclosed to the U.S. Patent and Trademark Office or the relevant foreign patent authority, as the case may be; (G) to the
Company’s knowledge, the issued patents included in the Intellectual Property are valid and enforceable and the Company is
unaware of any facts that would preclude the issuance of a valid and enforceable patent on any pending patent application included
in the Intellectual Property; (H) the Company has taken reasonable steps necessary to secure the interests of the Company in the
Intellectual Property purported to be owned by the Company from all employees, consultants, agents or contractors that developed (in
whole or in part) such Intellectual Property; (I) no government funding, facilities or resources of a university, college, other
educational institution or research center was used in the development of any Intellectual Property that is owned or purported to be
owned by the Company that would confer upon any governmental agency or body, university, college, other educational institution or
research center any claim or right in or to any such Intellectual Property; and (J) to the Company’s knowledge, none of the
technology employed by the Company has been obtained or is being used by the Company in violation of the rights of any entity.
“Intellectual Property” shall mean all patents, patent applications, trade and service marks, trade and
service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, domain names, technology, know-how and
other intellectual property in the United States and foreign jurisdictions.
(xxii)
Health Care Authorizations. The Company has submitted and possesses, or qualifies for applicable exemptions to, such valid and
current registrations, listings, approvals, clearances, licenses, certificates, authorizations or permits and supplements or amendments
thereto issued or required by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their business
(“Permits”), including, without limitation, all such Permits required by the U.S. Food and Drug Administration
(the “FDA”), the U.S. Department of Health and Human Services (“HHS”), the U.S. Centers
for Medicare & Medicaid Services (“CMS”), the European Medicines Agency (“EMA”),
Health Canada or any other comparable state, federal or foreign agencies or bodies to which it is subject, and the Company has not received
any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such Permit, except for such Permits,
the lack of which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xxiii) Compliance
with Health Care Laws. The Company and, to the Company’s knowledge, its directors, employees and agents (while acting in
such capacity) are and at all times have been in material compliance with, all health care laws applicable to the Company, or any of
its products or activities, including, but not limited to, the federal Anti-Kickback Statute (42 U.S.C.
Section 1320a-7b(b)), the Anti-Inducement Law (42 U.S.C. Section 1320a-7a(a)(5)), the civil False Claims Act (31
U.S.C. Section 3729 et seq.), the administrative False Claims Law (42 U.S.C. Section 1320a-7b(a)), the Xxxxx law (42
U.S.C. Section 1395nn), the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.)
as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.), the
exclusion laws (42 U.S.C. Section 1320a-7), the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.),
the Controlled Substances Act (21 U.S.C. Section 801 et seq.), the Public Health Service Act (42 U.S.C. Section 201 et
seq.), the Clinical Laboratory Improvement Amendments of 1988 (42 U.S.C. Section 263a), Medicare (Title XVIII of the Social Security
Act), Medicaid (Title XIX of the Social Security Act), and the Patient Protection and Affordable Care Act of 2010, as amended by the
Health Care and Education Reconciliation Act of 2010, the regulations promulgated pursuant to such laws, and any other state,
federal or foreign law, accreditation standards, regulation, memorandum, opinion letter, or other issuance which imposes
requirements on manufacturing, development, testing, labeling, advertising, marketing, promotion, distribution, reporting,
kickbacks, patient or program charges, recordkeeping, claims process, documentation requirements, medical necessity, referrals, the
hiring of employees or acquisition of services or supplies from those who have been excluded from government health care programs,
quality, safety, privacy, security, licensure, accreditation or any other aspect of providing health care, clinical laboratory or
diagnostics products or services (collectively, “Health Care Laws”). The Company has not received any
notification, correspondence or any other written or oral communication, including notification of any pending or threatened claim,
suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental authority, including,
without limitation, the FDA, the EMA, Health Canada, the U.S. Federal Trade Commission, the U.S. Drug Enforcement Administration
(“DEA”), CMS, HHS’s Office of Inspector General, the U.S. Department of Justice and state Attorneys
General or similar agencies of potential or actual non-compliance by, or liability of, the Company under any Health Care Laws,
except, with respect to any of the foregoing, such as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. To the Company’s knowledge, there are no facts or circumstances that would reasonably be expected to
give rise to material liability of the Company under any Health Care Laws. The statements with respect to Health Care Laws and the
Company’s compliance therewith included in the Registration Statement and in the Prospectus fairly summarize in all material
respects the matters therein described.
(xxiv) Clinical
Trials. The studies, tests and preclinical and clinical trials conducted by or on behalf of, or sponsored by, the Company, or in
which the Company has participated, that are described in the Registration Statement or the Prospectus, or the results of which are
referred to in the Registration Statement or the Prospectus, were and, if still pending, are being conducted in all material
respects in accordance with protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific
standards for products or product candidates comparable to those being developed by the Company and all applicable statutes, rules
and regulations of the FDA, the EMA, Health Canada and other comparable regulatory agencies outside of the U.S. to which they are
subject, including, without limitation, 21 C.F.R. Parts 50, 54, 56, 58, 312, and 812; the descriptions of the results of such
studies, tests and trials contained in the Registration Statement or the Prospectus do not contain any misstatement of a material
fact or omit a material fact necessary to make such statements not misleading; the Company has no knowledge of any studies, tests or
trials not described in the Registration Statement or the Prospectus the results of which reasonably call into question in any
material respect the results of the studies, tests and trials described in the Registration Statement or Prospectus; and the Company
has not received any notices or other correspondence from the FDA, EMA, Health Canada or any other foreign, state or local
governmental body exercising comparable authority or any Institutional Review Board or comparable authority requiring or threatening
the termination, suspension or material modification of any studies, tests or preclinical or clinical trials conducted by or on
behalf of, or sponsored by, the Company or in which the Company has participated, and, to the Company’s knowledge, there are
no reasonable grounds for the same. Except as disclosed in the Registration Statement and the Prospectus, there has not been any
violation of law or regulation by the Company in its respective product development efforts, submissions or reports to any
regulatory authority that could reasonably be expected to require investigation, corrective action or enforcement action.
(xxv)
Absence of Settlement Agreements or Undertakings. Except as disclosed in the Registration Statement and the Prospectus, the Company
is not a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements
with or imposed by any governmental authority.
(xxvi) Absence of Legal or Governmental Proceedings. Except as disclosed in the Registration Statement and the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject that, if determined adversely to the Company, would, in the aggregate, reasonably
be expected to have a Material Adverse Effect; and to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or others.
(xxvii) Material
Contracts. There are no contracts or other documents required to be described in the Registration Statement or filed as exhibits to
the Registration Statement that are not described and filed as required. The statements made in the Registration Statement and Prospectus,
insofar as they purport to constitute summaries of the terms of the contracts and other documents described and filed, constitute accurate
summaries of the terms of such contracts and documents in all material respects. Except as disclosed in the Registration Statement and
the Prospectus, neither the Company nor any of its subsidiaries has knowledge that any other party to any such contract or other document
has any intention not to render full performance as contemplated by the terms thereof.
(xxviii) Insurance.
The Company and each of its subsidiaries maintain insurance from nationally recognized, in the applicable country, insurers in such
amounts and covering such risks as is commercially reasonable in accordance with customary practices for companies engaged in
similar businesses and similar industries for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the
Company and its subsidiaries are in full force and effect; the Company and each of its subsidiaries are in compliance with the terms
of such policies in all material respects; and neither the Company nor any of its subsidiaries has received notice from any insurer
or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue
such insurance; there are no material claims by the Company or any of its subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a reservation of rights clause; and neither the Company nor any
such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not reasonably be expected to have a Material Adverse Effect.
(xxix) Related
Party Disclosure. No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company, on the other hand, that is required to be described in the Registration Statement
or the Prospectus which is not so described.
(xxx) No Labor
Dispute. No labor disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent that could reasonably be expected to have a Material Adverse Effect.
(xxxi)
No Violation or Default. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its
subsidiaries (i) is in violation of its articles of association, charter or by-laws (or similar organizational documents), (ii) is in
default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement,
license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is
subject, or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction
over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii),
to the extent any such conflict, breach, violation or default would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(xxxii) Environmental
Laws. Except as disclosed in the Registration Statement and the Prospectus, the Company and each of its subsidiaries (i) are, and
at all times prior hereto were, in compliance with all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other
legal requirements of any governmental authority, including without limitation any international, foreign, national, state, provincial,
regional, or local authority, relating to pollution, the protection of human health or safety, the environment, or natural resources,
or to use, handling, storage, manufacturing, transportation, treatment, discharge, disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental Laws”) applicable to such entity, which compliance includes,
without limitation, obtaining, maintaining and complying with all permits and authorizations and approvals required by Environmental
Laws to conduct their respective businesses, except for such non-compliance as would not individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, and (ii) have not received notice or otherwise have knowledge of any actual or alleged
violation of Environmental Laws, or of any actual or potential liability for or other obligation concerning the presence, disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants. Except as described in the Registration Statement and
the Prospectus, (x) there are no proceedings that are pending, or to the Company’s knowledge,threatened, against the Company or
any of its subsidiaries under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding
which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiaries are not
aware of any issues regarding compliance with Environmental Laws, including any pending or proposed Environmental Laws, or liabilities
or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that
could reasonably be expected to have a Material Adverse Effect, and (z) none of the Company and its subsidiaries anticipates material
capital expenditures relating to Environmental Laws.
(xxxiii) Taxes.
The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the
date hereof, subject to permitted extensions, and have paid all taxes due (except where the failure to so file or pay would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect, and except as currently being contested in good faith and for which
reserves have been created), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries, nor does the
Company have any knowledge of any tax deficiencies that have been, or would reasonably be expected to be asserted against the Company,
that would, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xxxiv) ERISA Compliance.
(i) Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended
(“ERISA”)) for which the Company or any member of its “Controlled Group” (defined as any organization
which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended
(the “Code”)) would have any liability (each a “Plan”) has been maintained in compliance
in all material respects with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and
the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect
to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject
to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur that would result in a material loss to the Company, (B) no “accumulated funding deficiency” (within the
meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (C)
the fair market value of the assets under each Plan that is required to be funded exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such Plan), and (D) neither the Company or any member of its Controlled
Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums
to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer
plan”, within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred, to the Company’s knowledge, whether by action or by failure to act, which
would cause the loss of such qualification.
(xxxv) Accuracy
of Statistical and Market Data. The statistical and market-related data included in the Registration Statement and the Prospectus
and the consolidated financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable in all material respects.
(xxxvi) Not an
Investment Company. Neither the Company nor any of its subsidiaries is, and as of the applicable Settlement Date and, after giving
effect to the offer and sale of the Shares and the application of the proceeds therefrom as described under “Use of Proceeds”
in the Registration Statement and the Prospectus, none of them will be, (i) an “investment company” or a company “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment
Company Act”), and the rules and regulations of the Commission thereunder, or (ii) a “business development company”
(as defined in Section 2(a)(48) of the Investment Company Act).
(xxxvii) Accuracy
of Certain Summaries and Statements. The statements set forth or incorporated by reference, as applicable, in each of the Registration
Statement and the Prospectus under the captions “Description of Capital Stock,” and in the Company’s Annual Report on
Form 10-K for the year ended December 31, 2023 under the captions “Legal Proceedings” and “Certain Relationships and
Related Transactions, and Director Independence”, insofar as they purport to summarize the provisions of the laws and documents
referred to therein, are accurate summaries in all material respects.
(xxxviii) Registration
Rights. Except as disclosed in the Registration Statement and the Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to be owned by such person. There are no contracts, agreements or understandings
to require the Company to include any such securities in the securities proposed to be offered pursuant to this Agreement.
(xxxix) No
Other Brokers. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person
(other than this Agreement) that would give rise to a valid claim against any of them or the Agent for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Shares.
(xl) No
Integration. The Company has not sold or issued any securities that would be integrated with the offering of the Shares contemplated
by this Agreement pursuant to the Securities Act or the interpretations thereof by the Commission.
(xli) Absence
of Stabilization or Manipulation. The Company and its affiliates have not taken, directly or indirectly, any action designed to or
that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Shares.
(xlii) Exchange
Act Registration and Listing of the Common Stock. The shares of Common Stock are registered pursuant to Section 12(b) of the
Exchange Act and listed on the Exchange; 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 Exchange is contemplating terminating such registration or listing, except as disclosed in the
Registration Statement and the Prospectus.
(xliii) Offering
Material. The Company has not distributed and prior to any Settlement Date, will not distribute any offering material in connection
with any Placement (as defined in Section 2(a)(i) below), other than any Preliminary Prospectus, the Prospectus, and any Permitted Free
Writing Prospectus to which the Agent has consented.
(xliv) Compliance with Labor Laws. Neither the Company nor any subsidiary is in violation of or has received notice of any violation with
respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal
or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated,
the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(xlv) No
Unlawful Payments. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director, officer, agent,
employee or other person associated with or acting on behalf of the Company or any of its subsidiaries, 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 U.S. Foreign Corrupt Practices Act of 1977, the Organization for Economic Co-operation and Development Convention
on Bribery of Foreign Public Officials in International Business Transactions, and the rules and regulations thereunder and any other
similar foreign or domestic law or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
The Company has instituted and maintains policies and procedures designed to ensure continued compliance with the laws and regulations
referenced in clause (iii) of this paragraph.
(xlvi) Anti-Money
Laundering Compliance. 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 applicable jurisdictions, the rules and regulations thereunder and any applicable 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.
(xlvii) OFAC.
(A) Neither
the Company nor any of its subsidiaries, nor any or their directors, officers or employees, nor, to the Company’s knowledge, any
agent, affiliate or representative of the Company or its subsidiaries, is an individual or entity that is, or is owned or controlled by
an individual or entity that is:
(1) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United
Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”),
nor
(2) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North
Korea and Syria).
(B) Neither
the Company nor any of its subsidiaries will, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other individual or entity:
(1) to
fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of
such funding or facilitation, is the subject of Sanctions; or
(2) in
any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating
in the offering, whether as underwriter, advisor, investor or otherwise).
(C) For
the past five years, neither the Company nor any of its subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any
dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
(xlviii) [Reserved.]
(xlix) No
Taxes or Fees Due Upon Issuance. No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including
interest and penalties, are payable on or in connection with the issuance and sale of the Shares by the Company or the execution and delivery
of this Agreement.
(l) No
Immunity. Neither the Company nor any of its subsidiaries, nor any of their respective properties or assets, has any immunity
from the jurisdiction of any court or from any legal process (whether through service or notice, attachment to prior judgment,
attachment in aid of execution or otherwise) under the laws of any jurisdiction in which it is organized, headquartered or doing
business.
(li) No Legal,
Accounting or Tax Advice. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting
advice in connection with the offering and sale of the Shares.
(lii) Certificate
as Representation and Warranty. Any certificate signed by any officer of the Company and delivered to the Agent or the Agent's counsel
in connection with the offering of the Shares shall be deemed a representation and warranty by the Company to the Agent as to the matters
covered thereby.
(liii) Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently
conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company
and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies,
procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal
Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security
number or tax identification number, driver’s license number, passport number, credit card number, bank information, or customer
or account number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade
Commission Act, as amended; (iii) “personal data” as defined by GDPR (as defined below); (iv) any information which would
qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended
by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any
other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis
of any data related to an identified person’s health or sexual orientation. There have been no material breaches, violations, outages
or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty to
notify any other person, nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries
are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation
or modification.
(liv) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its subsidiaries
have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance
with, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy
Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries have in place, comply with, and take
appropriate steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data
privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”).
The Company and its subsidiaries have at all times made all disclosures to users or customers required by applicable laws and regulatory
rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate
or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that
neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual or potential
violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any
such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action
pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any
Privacy Law.
(lv) 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.
2. Purchase,
Sale and Delivery of Shares.
(a) At-the-Market
Sales. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to issue and sell through the Agent as sales agent, and the Agent agrees to use its commercially reasonable
efforts to sell for and on behalf of the Company, the Shares on the following terms and conditions; provided, however, that
any obligation of the Agent to use such commercially reasonable efforts shall be subject to the continuing accuracy of the representations
and warranties of the Company herein, the performance by the Company of its covenants and obligations hereunder and the continuing satisfaction
of the additional conditions specified in Section 4 of this Agreement. The Company acknowledges and agrees that (i) there can be
no assurance that the Agent will be successful in selling Shares, and (ii) the Agent will incur no liability or obligation to the
Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such Shares as required under this Section 2.
(i) Each
time that the Company wishes to issue and sell the Shares hereunder (each, a “Placement”), it will notify the
Agent 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 Shares to be sold, which shall at a minimum include the number of Shares
to be issued, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in
any one Trading Day (as defined below) 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 the Agent set forth on Schedule 2, as such Schedule 2 may be amended
from time to time. The Placement Notice shall be effective upon receipt by the Agent unless and until (i) in accordance with the
notice requirements set forth in Section 2(a)(iii) of this Agreement, the Agent declines to accept the terms contained therein for
any reason, in its sole discretion, (ii) the entire amount of the Shares have been sold, (iii) the Company suspends or terminates
the Placement Notice in accordance with the notice requirements set forth in Section 2(a)(iii) below, (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 7. The amount of any commission or other compensation to be paid by the Company to the Agent in
connection with the sale of the Shares shall be calculated in accordance with the terms set forth in Section 2(a)(v) below. It is expressly
acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement or any
Shares unless and until the Company delivers a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant
to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the
terms of this Agreement and the terms of the Placement Notice, the terms of the Placement Notice will control. 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.
(ii) The Shares are
to be sold by the Agent on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that is a Trading
Day for the Exchange (other than a day on which the Exchange is scheduled to close prior to its regular weekday closing time). The gross
sales price of the Shares sold under this Section 2(a) shall be the market price for the Company’s Common Stock sold by the Agent
under this Section 2(a) at the time of such sale.
(iii) Notwithstanding
the foregoing, the Company may instruct the Agent by telephone (confirmed promptly by email) not to sell the Shares if such sales
cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not
authorize the issuance and sale of, and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any
Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and
notified to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other party hereto by telephone
(confirmed promptly by email), suspend the offering of the Shares, whereupon the Agent shall so suspend the offering of Shares until
further notice is provided to the other party to the contrary; provided, however, that such suspension or termination
shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving
of such notice. 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 the Agent agree that (i) no sale of Shares will take place, (ii) the
Company shall not request the sale of any Shares, and (iii) the Agent shall not be obligated to sell or offer to sell any
Shares.
(iv) Subject
to the terms of the Placement Notice, the Agent may sell the Shares by any method permitted by law deemed to be an “at the market
offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on or through an Exchange. Subject
to the terms of any Placement Notice, the Agent may also sell Shares in negotiated transactions at market prices prevailing at the time
of sale or at prices related to such prevailing market prices and/or any other method permitted by law, subject to the prior written consent
of the Company.
(v) The
compensation to the Agent for sales of the Shares, as an agent of the Company, shall be 3.0% of the gross sales price of the Shares sold
pursuant to this Section 2(a), payable in cash (the “Sales Commission”); provided that the combined Sales
Commission and reimbursement of the Agent for its out-of-pocket expenses pursuant to Section 3(g), including reasonable fees and disbursements
of the Agent’s counsel, shall not exceed 8.0% of the gross sales price of the Shares. The remaining proceeds, after further deduction
for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, and reimbursement of expenses
that the Agent may be entitled to pursuant to Section 3(g), shall constitute the net proceeds to the Company for such Shares (the “Net
Proceeds”).
(vi) The
Agent will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set
forth on Schedule 2), no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales
of Shares hereunder, setting forth the number of Shares sold on such day, the volume-weighted average price of the Shares sold, and the
Net Proceeds payable to the Company.
(vii) All
Shares sold pursuant to this Section 2(a) will be delivered by the Company to the Agent for the account of the Agent, against
payment of the Net Proceeds therefor, by wire transfer of same-day funds payable to the order of the Company at the offices of Xxxxx
Xxxxxxx & Co., U.S. Bancorp Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually
acceptable, at 9:00 a.m. Central Time on the first full business day following the date on which such Shares are sold, or at
such other time and date as the Agent and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, each such time
and date of delivery being herein referred to as a “Settlement Date.” If the Agent so elects, delivery of
the Shares may be made by credit through full fast transfer to an account or accounts at The Depository Trust Company designated by
the Agent. On each Settlement Date, the Agent will deliver the Net Proceeds in same day funds to an account designated by the
Company on, or prior to, such Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to timely deliver duly authorized 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 5 hereto, it will (i) hold the Agent harmless against
any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company, (ii) reimburse the Agent for any losses incurred by the Agent attributable, directly or
indirectly, to such default and (iii) pay to the Agent any commission or other compensation to which the Agent would otherwise
have been entitled absent such default.
(b) Maximum
Amount. Under no circumstances shall the aggregate number or aggregate value of the Shares sold pursuant to this Agreement exceed:
(i) the aggregate number and aggregate dollar amount of shares of Common Stock available for issuance and sale under the currently effective
Registration Statement (including any limit set forth in General Instruction I.B.6 thereof, if applicable), (ii) the aggregate number
of authorized but unissued shares of Common Stock that are available for issuance under the Company’s certificate of incorporation
or certificate of designation or (iii) the aggregate number or aggregate dollar amount of shares of Common Stock for which the Company
has filed any Prospectus or prospectus supplement in connection with the Shares (the lesser of (i), (ii) and (iii), the “Maximum
Amount”).
(c) No
Association or Partnership. Nothing herein contained shall constitute the Agent as an unincorporated association or partner with the
Company.
(d) Duration.
Under no circumstances shall any Shares be sold pursuant to this Agreement after the date which is three years after the Registration
Statement is first declared effective by the Commission.
(e) Market
Transactions by Agent. The Company acknowledges and agrees that the Agent has informed the Company that the Agent may, to the extent
permitted under the Securities Act, the Exchange Act and this Agreement, purchase and sell shares of Common Stock for its own account
while this Agreement is in effect, provided, that (i) no sale for its own account shall take place while a Placement Notice
is in effect (except to the extent the Agent may engage in sales of Shares purchased or deemed purchased from the Company as a “riskless
principal” or in a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases
or sales by the Agent. The Company consents to the Agent trading in the Common Stock for the account of any of its clients at the same
time as sales of the Shares occur pursuant to this Agreement.
3. Covenants
of the Company. The Company covenants and agrees with the Agent as follows:
(a) Amendments
to Registration Statement and Prospectus. After the date of this Agreement and during any period in which a Prospectus relating
to any Shares is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company agrees that it will: (i) notify the Agent
promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference or
amendments not related to the Shares, has been filed with the Commission and/or has become effective or any subsequent supplement to
the Prospectus related to the Shares has been filed and of any request by the Commission for any amendment or supplement to the
Registration Statement (insofar as it relates to the transactions contemplated hereby) or Prospectus or for additional information;
(ii) prepare and file with the Commission, promptly upon the Agent’s written request, any amendments or supplements to the
Registration Statement or Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable in connection with
the sale of the Shares by the Agent (provided, however, that the failure of the Agent to make such written request shall not
relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and
warranties made by the Company in this Agreement); (iii) not file any amendment or supplement to the Registration Statement or
Prospectus, other than documents incorporated by reference, relating to the Shares unless a copy thereof has been submitted to the
Agent within a reasonable period of time before the filing and the Agent has not reasonably objected thereto (provided,
however, that (A) the failure of the Agent to make such objection shall not relieve the Company of any obligation or
liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the Company in this
Agreement), (B) the Company has no obligation to provide the Agent any advance copy of such filing or to provide the Agent an
opportunity to object to such filing if the filing does not name the Agent or does not relate to a Placement or other transaction
contemplated hereunder, and (C) the only remedy that the Agent shall have with respect to the failure by the Company to provide
the Agent with such copy or the filing of such amendment or supplement despite the Agent’s objection shall be to cease making
sales under this Agreement); (iv) furnish to the Agent at the time of filing thereof a copy of any document that upon filing is
deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via
XXXXX; and (v) 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) Stop
Order. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the issuance or threatened
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification
of the 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) Continuing
Amendments. During any period in which a Prospectus relating to the Shares is required to be delivered by the Agent under the
Securities Act with respect to any Placement or pending sale of the Shares, (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements imposed upon it by the
Securities Act, as from time to time in force, and to file on or before their respective due dates all reports (taking into account
any extensions available under the Exchange Act) 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 the Agent to suspend the offering of
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.
(d) Qualification
of the Shares. The Company shall take or cause to be taken all necessary action to qualify the Shares for sale under the securities
laws of such jurisdictions as the Agent reasonably designates and to continue such qualifications in effect so long as required for the
distribution of the Shares, except that the Company shall not be required in connection therewith to qualify as a foreign corporation
or to execute a general consent to service of process in any state. The Company shall promptly advise the Agent of the receipt by the
Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose.
(e) Copies
of Registration Statement and Prospectus. The Company will furnish to the Agent and counsel for the Agent copies of the Registration
Statement (which will include three complete manually signed copies of the Registration Statement and all consents and exhibits filed
therewith), the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities
as the Agent may from time to time reasonably request.; provided, however, that the Company shall not be required to furnish any
document to the extent such document is available on XXXXX.
(f) Section
11(a). The Company will make generally available to its security holders as soon as practicable an earnings statement (which need
not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder.
(g) Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or
cause to be paid (i) all expenses (including stock or transfer taxes and stamp or similar duties allocated to the respective
transferees) incurred in connection with the registration, issue, sale and delivery of the Shares, (ii) all expenses and fees
(including, without limitation, fees and expenses of the Company’s accountants and counsel) in connection with the
preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and
all amendments, schedules, and exhibits thereto), the Shares, the Prospectus and any amendment thereof or supplement thereto, and
the producing, word-processing, printing, delivery, and shipping of this Agreement and other underwriting documents or closing
documents, including Blue Sky Memoranda (covering the states and other applicable jurisdictions) and including the cost to furnish
copies of each thereof to the Agent, (iii) all filing fees, (iv) all reasonable fees and disbursements of the Agent’s counsel
incurred in connection with the qualification of the Shares for offering and sale by the Agent or by dealers under the securities or
blue sky laws of the states and other jurisdictions which the Agent shall designate, (v) the fees and expenses of any transfer agent
or registrar, (vi) the fees and disbursements of Agent's counsel, not to exceed $5,000, in connection
with determining compliance of sales of the Shares with the rules of FINRA, and any filing fee incident to any required filing,
(vii) listing fees, if any, (viii) the cost and expenses of the Company relating to investor presentations or any
“roadshow” undertaken in connection with marketing of the Shares, and (ix) all other reasonable costs and expenses
incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein. In addition to
(iv) and (vi) above, the Company shall reimburse the Agent for its out-of-pocket expenses, including reasonable fees and
disbursements of the Agent’s counsel incurred by Agent in connection with this Agreement, the Registration Statement, the ATM
Prospectus; provided that such fees and disbursements shall not exceed: (A) $75,000 in connection with the filing of the initial ATM
Prospectus pursuant to this Agreement, and (B) $15,000 for each quarter subsequent to the quarter in which the initial ATM
Prospectus was filed.
(h) Use
of Proceeds. The Company will apply the net proceeds from the sale of the Shares in the manner described in the Prospectus.
(i) Restrictions
on Future Sales. During the period beginning on the date a
Placement Notice is delivered to the Agent by the Company and
ending on the Settlement Date of the Shares to be sold pursuant to such Placement Notice or the earlier termination or suspension of
such Placement Notice, the Company will not offer for sale, sell, contract to sell, pledge, grant any option for the sale of, enter
into any transaction which is designed to, or might reasonably be expected to, result in the disposition of Common Stock (whether by
actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate, or
otherwise issue or dispose of, directly or indirectly (or publicly disclose the intention to make any such offer, sale, pledge,
grant, issuance or other disposition), any Common Stock or any securities convertible into or exchangeable for, or any options or
rights to purchase or acquire, Common Stock, or permit the registration under the Securities Act of any Common Stock, such
securities, options or rights, except for: (i) the registration of the Shares and the sales through the Agent pursuant to this
Agreement, (ii) any transaction in which the Agent is a participant or acting as an advisor to or agent of the Company or in some
similar capacity, (iii) sales of shares through any dividend reinvestment and stock purchase plan of the Company, (iv) sales of
shares of restricted stock, restricted stock units and options granted pursuant to employee benefit plans existing as of the date
hereof, and the Common Stock issuable upon the exercise of such outstanding options or vesting of such restricted stock units, (v)
the filing of registration statements on Form S-8, (vi) the issuance or sale of Common Stock issuable upon exchange, conversion or
redemption of securities or the exercise or vesting of warrants or options, in each case described in the Registration Statement and
Prospectus; (vii) modification of any such securities, options or warrants, (viii) issuances or sales of Common Stock in connection
with any research and development collaborations or similar transactions, provided that number of shares of Common Stock issued in
such transactions is equal to or less than 5% of the Company’s outstanding capital stock as of the date of such issuance, and
(ix) the issuance of securities in connection with an acquisition, merger or sale or purchase of assets, in the case of each of (ii)
through (ix), without giving the Agent at least three business days’ prior written notice specifying the nature of the
proposed sale and the date of such proposed sale, so as to permit the Agent to suspend activity under this Agreement for such period
of time as requested by the Company.
(j) No
Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to, or which
might reasonably be expected to cause or result in, or which constitutes: (i) the stabilization or manipulation of the price of the Common
Stock or any other security of the Company to facilitate the sale or resale of the Shares, (ii) a violation of Regulation M. The Company
shall notify the Agent of any violation of Regulation M by the Company or any of its subsidiaries or any of their respective officers
or directors promptly after the Company has received notice or obtained knowledge of any such violation.
(k) No
Other Broker. The Company will not incur any liability for any finder’s or broker’s fee or agent’s commission (other
than the Sales Commission) in connection with the execution and delivery of this Agreement, or the consummation of the transactions contemplated
hereby.
(l) Timely
Securities Act and Exchange Act Reports. During any prospectus delivery period with respect to the Shares, the Company will use its
commercially reasonable efforts to file on a timely basis with the Commission such periodic and special reports as required by the Securities
Act and the Exchange Act.
(m) Internal
Controls. The Company and its subsidiaries will maintain such controls and other procedures, including without limitation, those required
by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act and the applicable regulations thereunder, that are designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the Commission’s rules and forms, including without limitation, controls and procedures
designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act is accumulated and communicated to the Company’s management, including its principal executive officer and its principal financial
officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that
material information relating to Company, including its subsidiaries, is made known to them by others within those entities.
(n) Permitted
Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior written consent of the Agent, and the
Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer
relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Securities
Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required
to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Agent is hereinafter referred to
as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will
treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied
and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing
where required, legending and record keeping.
(o) Representation
Date and Opinions of Counsel. On or prior to the date of the first Placement Notice, and thereafter during the term of this Agreement,
each time the Company (A) files an amendment to the Registration Statement or Prospectus (other than relating solely to the offering of
securities other than the Shares), (B) files an annual report on Form 10-K under the Exchange Act or files its quarterly reports on Form
10-Q under the Exchange Act; and (C) files a report on Form 8-K containing amended financial statements (other than an earnings release)
under the Exchange Act, (each of the dates in (A), (B) and (C) are referred to herein as a “Representation Date”),
the Company shall cause:
(i) Xxxxxx
Xxxxxx LLP, counsel for the Company, to furnish to the Agent the opinion and negative assurance letter of such counsel, dated as of such
date and addressed to the Agent, in form and substance reasonably satisfactory to the Agent; provided however, only a negative assurance
letter of such counsel shall be required for each subsequent Representation Date; and
(ii) Xxxxxxx
Xxxx & Xxxxxxxxx XXX, intellectual property and patent counsel for the Company, or other intellectual property and patent counsel
for the Company, to furnish to the Agent the opinion of such counsel, dated as of such date and addressed to the Agent, in form and substance
reasonably satisfactory to the Agent; provided however, the opinion of such counsel shall only be required for the first Settlement Date.
Notwithstanding the foregoing
and Sections 3(p) and 3(q) hereof, the requirement to provide counsel opinions, a comfort letter, a CFO certificate, certificates and
other documents shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver
shall continue until the date the Company delivers a Placement Notice to the Agent. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent
with the opinions, comfort letter, CFO certificate, certificates and other documents, then before the Agent sells any Shares pursuant
to Section 2(a), the Company shall cause the opinions (including the opinion pursuant to Section 3(o) if not delivered on the date of
the prior Form 10-K), comfort letter, CFO certificate, certificates and documents that would be delivered on a Representation Date to
be delivered. Notwithstanding the foregoing, the Agent could waive any requirement to provide counsel opinions, a comfort letter, CFO
certificate, certificates and/or other documents for any Representation Date for which such documents would otherwise be required.
(p) Representation
Date and Comfort Letter. On or prior to the date of the first Placement Notice and thereafter during the term of this Agreement, on
each Representation Date to which a waiver does not apply, the Company shall cause Xxxxx Xxxxx US, LLP, or other independent accountants
reasonably satisfactory to the Agent (the “Accountants”), to deliver to the Agent a letter, dated as of such
date and addressed to the Agent, confirming that they are independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation
S-X of the Commission, and stating the conclusions and findings of said firm with respect to the financial information and other matters
covered by its letter in form and substance satisfactory to the Agent of the same tenor as the first such letter received hereunder.
(q) Representation
Date and Representation Certificate. On or prior to the date of the first Placement Notice and thereafter during the term of this
Agreement, on each Representation Date to which a waiver does not apply, the Company shall furnish to the Agent a certificate (the “Representation
Certificate”), substantially in the form of Schedule 3 hereto and dated as of such date, addressed to the Agent and
signed by the chief executive officer and by the chief financial officer of the Company.
(r) Disclosure
of Shares Sold. The Company shall disclose in its quarterly reports on Form 10-Q and in its annual report on Form 10-K the number
of the Shares sold through the Agent under this Agreement, the net proceeds to the Company and the compensation paid by the Company with
respect to sales of the Shares pursuant to this Agreement during the relevant quarter.
(s) Continued
Listing of Shares. The Company shall use its commercially reasonable efforts to maintain the listing of the Common Stock on the Exchange.
(t) Notice
of Changes. At any time during the term of this Agreement, as supplemented from time to time, the Company shall advise the Agent as
soon as practicable after it shall have received notice or obtain knowledge thereof, of any information or fact that would alter or affect
any opinion, certificate, letter and other document provided to the Agent pursuant to this Section 3.
(u) Maximum
Amount. The Company will not instruct the Agent to sell or otherwise attempt to sell Shares pursuant to this Agreement in excess of
the Maximum Amount.
(v) CFO
Certificate. Prior to the date of the first Placement Notice and thereafter during the term of this Agreement, on each Representation
Date to which a waiver does not apply, the Company shall furnish to the Agent a certificate, dated the date of such Representation Date
and addressed to the Agent, of its chief financial officer with respect to certain financial data contained in the Prospectus, providing
“management comfort” with respect to such information, in form and substance reasonably satisfactory to the Agent.
4. Conditions
of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy, as of the date of this Agreement,
each Representation Date, each Notice Date, each Applicable Time, and each Settlement Date (in each case, as if made at such date) of
and compliance with all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company
of its obligations hereunder and (iii) the following additional conditions:
(a) Continuing
Amendments; No Stop Order. If filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing
Prospectus, is required under the Securities Act, the Company shall have filed the Prospectus (or such amendment or supplement) or
such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on
Rule 424(b)(8) or Rule 164(b) under the Securities Act); the Registration Statement shall be effective; no stop order suspending the
effectiveness of the Registration Statement or any part thereof, any registration statement filed pursuant to Rule 462(b) under the
Securities Act, or any amendment thereof, nor suspending or preventing the use of the Prospectus shall have been issued; no
proceedings for the issuance of such an order shall have been initiated or, to the knowledge of the Company, threatened; and any
request of the Commission for additional information (to be included in the Registration Statement, the Prospectus or otherwise)
shall have been complied with to the Agent's satisfaction.
(b) Absence of Certain Events.
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 Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (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 Material Misstatement
or Omission. The Agent shall not have advised the Company that the Registration Statement or any the Prospectus, contains an untrue
statement of fact which, in the Agent’s opinion, is material, or omits to state a fact which, in the Agent’s opinion, is material
and is required to be stated therein or necessary to make the statements therein not misleading.
(d) No
Adverse Changes. Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus, neither the Company nor any of its subsidiaries shall have incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any
kind with respect to its capital stock; and there shall not have been any material change in the capital stock (other than a change
in the number of outstanding shares of Common Stock due to the issuance of shares of Common Stock upon the exercise or vesting of
outstanding options or warrants or awards granted pursuant to any Specified Equity Plan), or any material change in the
short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to
purchase the capital stock of the Company or any of its subsidiaries, or any development involving a prospective Material Adverse
Effect (whether or not arising in the ordinary course of business), or any loss by strike, fire, flood, earthquake, accident or
other calamity, whether or not covered by insurance, incurred by the Company or any of its subsidiaries, the effect of which, in any
such case described above, in the Agent’s reasonable judgment, makes it impractical or inadvisable to offer or deliver the
Shares on the terms and in the manner contemplated in the Prospectus.
(e) No
Rated Securities. There are no debt securities or preferred shares issued, or guaranteed, by the Company that are rated by a “nationally
recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(f) Compliance
with Certain Obligations. The Company shall have performed each of its obligations under Section 3(o) – 3(q) and Section 3(v).
(g) Opinion
of Agent Counsel. On each Representation Date to which a waiver does not apply, there shall have been furnished to the Agent the opinion
and negative assurance letter of Xxxxxxxxx & Xxxxxxx LLP, counsel for the Agent, dated as of such Representation Date and addressed
to the Agent, in a form reasonably satisfactory to the Agent, and such counsel shall have received such papers and information as they
request to enable them to pass upon such matters; provided however, the opinion of Xxxxxxxxx & Xxxxxxx LLP shall only be required
prior to the first Placement Notice, and thereafter, only a negative assurance letter of such counsel shall be required for each subsequent
Representation Date.
(h) Representation Certificate.
On or prior to the first Placement Notice, the Agent shall have received the Representation Certificate substantially in the form of Schedule
3 hereto.
(i) No Objection by FINRA.
FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) [Reserved].
(k) Additional
Documents and Certificates. The Company shall have furnished to the Agent and the Agent’s counsel such additional documents,
certificates and evidence as they may have reasonably requested.
All opinions, certificates,
letters and other documents described in this Section 4 will be in compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Agent and the Agent’s counsel. The Company will furnish the Agent with such conformed copies of such
opinions, certificates, letters and other documents as the Agent shall reasonably request.
5. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates, directors, officers and employees,
and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities, joint or several, to which the Agent may become subject, under the
Securities Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of
the Company, such consent not to be unreasonably withheld, or without the written consent of the Company if such consent is
unreasonably withheld), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon, in whole or in part:
(i) an
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the Rule 430B Information
(as defined below) and at any subsequent time pursuant to Rules 430A and 430B promulgated under the Securities Act, and any other
information deemed to be part of the Registration Statement at the time of effectiveness, and at any subsequent time pursuant to the Securities
Act or the Exchange Act, and the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Prospectus), any Permitted Free Writing Prospectus, or any roadshow as defined
in Rule 433(h) under the Securities Act (a “road show”), or an omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading,
(ii) any
inaccuracy in the representations and warranties of the Company contained herein;
(iii) any
investigation or proceeding by any governmental authority, commenced or threatened with respect to the Company or the matters covered
by the Agreement (whether or not the Agent is a target of or party to such investigation or proceeding);
(iv) any
failure of the Company to perform its respective obligations hereunder or under law;
and will reimburse the Agent
for any legal or other expenses reasonably incurred and documented by it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case of (i) through (iv)
to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the Company by the Agent specifically for use in the preparation
thereof. “Rule 430B Information,” as used herein, means information with respect to the Shares and the offering
thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430B.
In addition to its other obligations
under this Section 5(a), the Company agrees that, as an interim measure during the pendency of any claim, action, investigation, inquiry
or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 5(a),
it will reimburse the Agent on a monthly basis for all reasonable and documented legal fees or other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company’s obligation to reimburse the Agent for such expenses
and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. Any such interim
reimbursement payments which are not made to the Agent within 30 days of a request for reimbursement shall bear interest at the WSJ Prime
Rate (as published from time to time by the Wall Street Journal).
(b) Agent
Indemnification. The Agent will indemnify and hold harmless the Company, its directors, its officers, who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent of the Agent), but only insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the Prospectus, any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in conformity with written information furnished to the Company by the Agent
specifically for use in the preparation thereof, it being understood and agreed that the only information furnished by the Agent for use
in the Registration Statement or the Prospectus consists of the statements set forth in the ninth paragraph under the caption “Plan
of Distribution” in the Prospectus, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending against any such loss, claim, damage, liability or action.
(c) Notice
and Procedures. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve
the indemnifying party from any liability that it may have to any indemnified party except to the extent such indemnifying party has been
materially prejudiced by such failure. In case any such action shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party, and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election
so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal
or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that if, in the sole judgment of the Agent, it is advisable for the Agent to be represented
by separate counsel, the Agent shall have the right to employ a single counsel to represent the Agent, in which event the reasonable fees
and expenses of such separate counsel shall be borne by the indemnifying party or parties and reimbursed to the Agent as incurred (in
accordance with the provisions of the second paragraph in subsection (a) above).
The indemnifying party
under this Section 5 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for
reasonable fees and expenses of counsel as contemplated by this Section 5, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into, and (iii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (a)
includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action,
suit or proceeding and (b) does not include a statement as to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) Contribution;
Limitations on Liability; Non-Exclusive Remedy. If the indemnification provided for in this Section 5 is unavailable or insufficient
to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a)
or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and
the Agent on the other from the offering of the Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the Agent on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Agent on the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to the total commissions received by the Agent (before deducting
expenses) from the sale of the Shares. The relative fault shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company or the Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the Agent agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were to be determined by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in this subsection (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), the Agent shall not be required
to contribute any amount in excess of the commissions received by it under this Agreement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
6. Representations
and Agreements to Survive Delivery. All representations, warranties, and agreements of the Company herein or in certificates delivered
pursuant hereto, including but not limited to the agreements of the Agent and the Company contained in Section 5 hereof, shall remain
operative and in full force and effect regardless of any investigation made by or on behalf of the Agent or any controlling person thereof,
or the Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Shares to
and by the Agent hereunder.
7. Termination
of this Agreement.
(a) The
Company shall have the right, by giving three (3) days’ written notice as hereinafter specified, to terminate the provisions of
this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination
shall be without liability of any party to any other party except that (i) with respect to any pending sale, through the Agent for the
Company, the obligations of the Company, including in respect of compensation of the Agent, shall remain in full force and effect notwithstanding
the termination and (ii) the provisions of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in full force and effect
notwithstanding such termination.
(b) The
Agent shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in
full force and effect notwithstanding such termination.
(c) Unless
earlier terminated pursuant to this Section 7, this Agreement shall automatically terminate upon the earlier to occur of the issuance
and sale of all of the Shares through the Agent on the terms and subject to the conditions set forth herein, except that the provisions
of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in full force and effect notwithstanding such termination.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 7(a), (b) or (c) above or otherwise by mutual agreement
of the parties; provided that any such termination by mutual agreement shall in all cases be deemed to provide that Section 3(g), Section
5 and Section 6 shall remain in full force and effect.
(e) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may be. If
such termination shall occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in accordance with the provisions
of Section 2(a)(vii) of this Agreement.
8. Default
by the Company. If the Company shall fail at any Settlement Date to sell and deliver the number of Shares which it is
obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Agent or, except as
provided in Section 3(g) hereof, any non-defaulting party. No action taken pursuant to this Section shall relieve the Company
from liability, if any, in respect of such default, and the Company shall (A) hold the Agent harmless against any loss, claim or
damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise
be entitled absent such default.
9. Notices.
Except as otherwise provided herein, all communications under this Agreement shall be in writing and, if to the Agent, shall be delivered
via overnight delivery services to (i) Xxxxx Xxxxxxx & Co., U.S. Bancorp Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Equity Capital Markets, with a copy to Xxxxx Xxxxxxx General Counsel at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 and XxxxxXxxXxxxxxx@xxx.xxx;
and (ii) the Company at 000 Xxxxxx Xxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Xxxxx Xxxxxx, Email: xxxxxxx@xxxxxxxxx.xxx; or in
each case to such other address as the person to be notified may have requested in writing. Any 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.
10. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and directors referred to in Section 5. Nothing in this Agreement
is intended or shall be construed to give to any other person, firm or corporation any legal or equitable remedy or claim under or in
respect of this Agreement or any provision herein contained. The term “successors and assigns” as herein used shall not include
any purchaser, as such purchaser, of any of the Shares from the Agent.
11. Absence
of Fiduciary Relationship. The Company, having been advised by counsel, acknowledges and agrees that: (a) the Agent has been
retained solely to act as a sales agent in connection with the sale of the Shares and that no fiduciary, advisory or agency
relationship between the Company (including any of the Company’s affiliates (including directors), equity holders, creditors,
employees or agents, hereafter, “Company Representatives”), on the one hand, and the Agent on the other,
has been created or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether
the Agent has advised or is advising the Company on other matters and irrespective of the use of the defined term
“Agent;” (b) neither the Agent nor any of its affiliates (including directors), equity holders, creditors, employees or
agents, hereafter, “Agent Representatives”) shall have any duty or obligation to the Company or any
Company Representative except as set forth in this Agreement; (c) the price and other terms of any Placement executed pursuant to
this Agreement, as well as the terms of this Agreement, are deemed acceptable to the Company and its counsel, following discussions
and arms-length negotiations with the Agent; (d) the Company is capable of evaluating and understanding, and in fact has evaluated,
understands and accepts the terms, risks and conditions of any Placement Notice to be executed pursuant to this Agreement, and any
other transactions contemplated by this Agreement; (e) the Company has been advised that the Agent and the Agent Representatives are
engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Agent and
the Agent Representatives have no obligation to disclose any such interests and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship, or otherwise; (f) the Company has been advised that the Agent is acting, in respect of
any Placement and the transactions contemplated by this Agreement, solely for the benefit of the Agent, and not on behalf of the
Company; and (g) the Company and the Company Representatives waive, to the fullest extent permitted by law, any claims that they may
have against the Agent or any of the Agent Representatives for breach of fiduciary duty or alleged breach of fiduciary duty in
respect of any Placement or any of the transactions contemplated by this Agreement and agree that the Agent and the Agent
Representatives shall have no liability (whether direct or indirect, in contract, tort or otherwise) to the Company or any of the
Company Representatives in respect of any person asserting any claim of breach of any fiduciary duty on behalf of or in right of the
Company or any of the Company Representatives.
12. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that the Agent is a Covered Entity that becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from the Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that the Agent is a Covered Entity or a BHC Act Affiliate of the Agent becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under this Agreement that may be exercised against the Agent are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws
of the United States or a state of the United States.
(c) As
used in this section:
“BHC Act Affiliate” has
the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
“Covered Entity” means
any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);
or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b);
“Default Right” has the
meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable;
and
“U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx
Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
13. Governing
Law and Waiver of Jury Trial. This Agreement and any transaction contemplated by this Agreement and any claim, controversy
or dispute arising under or related thereto shall be governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflict of laws that would results in the application of any other law than the laws of the State
of New York. The Company (on its own behalf and on behalf of its stockholders and
affiliates) hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
14. Submission
to Jurisdiction, Etc. Each party hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts sitting
in the Borough of Manhattan, City of New York, in any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any lawsuit, action
or other proceeding in such courts, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such
court that any such lawsuit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
15. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute
one and the same instrument. Counterparts may be delivered via facsimile or electronic mail (including,
without limitation, “pdf”, “tif” or “jpg”) and any counterpart so delivered shall be deemed
to have been duly and validly delivered and be valid and effective for all purposes.
16. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority shall be deemed to refer to
such law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority as amended, reenacted, supplemented
or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated thereunder. This Agreement
constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may not be amended or modified unless
in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party
whom the condition is meant to benefit.
[Signature Pages Follow]
Please
sign and return to the Company the enclosed duplicates of this letter whereupon this letter will become a binding agreement between the
Company and the Agent in accordance with its terms.
Confirmed as of the date first
above mentioned.
| XXXXX XXXXXXX & CO. |
|
| |
|
| By: |
/s/ Xxxxxx Xxxxxx |
|
| |
Name: Xxxxxx Xxxxxx |
|
| |
Title: Director |
|
SCHEDULE 1
FORM OF PLACEMENT NOTICE
No Facsimile and No Voicemail
Pursuant to the terms and subject to the conditions
contained in the Equity Distribution Agreement between Cellectar Biosciences, Inc. ( “Company”), and Xxxxx Xxxxxxx
& Co. ( “Agent”) dated [●], 2024 [(the “Agreement”), the Company hereby requests
that Agent sell up to [●] shares of the Company’s common stock, par value $0.00001 per share, at a minimum market price of
$[¨] per share. Sales should begin on the date of this Placement Notice and shall continue until [¨] /[all shares
are sold].
SCHEDULE 2
NOTICE PARTIES
[Name of Company]
[Authorized Contact]
[Authorized Contact]
[Authorized Contact]
Xxxxx Xxxxxxx & Co.
[***]
[***]
[***]
[***]
[***]
[***]
SCHEDULE 3
FORM OF REPRESENTATION CERTIFICATE
PURSUANT TO SECTION 3(q) OF THE AGREEMENT
[Date]
Xxxxx Xxxxxxx & Co.
800 Nicollet Mall
Minneapolis, MN 55402
Sir:
The undersigned, the duly qualified and elected
[•] and [•], respectively, of Cellectar Biosciences, Inc., a Delaware corporation (the “Company”), do hereby
certify in such capacity and on behalf of the Company, pursuant to Section 3(q) of the Equity Distribution Agreement, dated [ ],
2024 (the “Equity Distribution Agreement”), between the Company and Xxxxx Xxxxxxx & Co., that to the best of the
knowledge of the undersigned:
(i)
The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made
at and as of the date of the certificate, and the Company has complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the date of the certificate;
(ii)
No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof
or the qualification of the Shares for Registration Statement, nor suspending or preventing the use of the Prospectus or any Permitted
Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or, to the Company’s knowledge,
is contemplated by the Commission or any state or regulatory body;
(iii)
The Shares have been duly and validly authorized by the Company and all corporate action required to be taken for the authorization,
issuance and sale of the Shares has been validly and sufficiently taken;
(iv)
The signers of this certificate have carefully examined the Registration Statement, the Prospectus and any Permitted Free Writing
Prospectus, and any amendments thereof or supplements thereto (including any documents filed under the Exchange Act and deemed to be incorporated
by reference into the Prospectus and any Permitted Free Writing Prospectus),
(A) each
part of the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto (including any documents
filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus) contain, and contained when such part
of the Registration Statement (or such amendment) became effective, all statements and information required to be included therein,
each part of the Registration Statement, or any amendment thereof, does not contain, and did not contain, when such part of the
Registration Statement (or such amendment) became effective, any untrue statement of a material fact or omit to state, and did not
omit to state when such part of the Registration Statement (or such amendment) became effective, any material fact required to be
stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not
include and did not include as of its date, or the time of first use within the meaning of the Securities Act, any untrue statement
of a material fact or omit to state and did not omit to state as of its date, or the time of first use within the meaning of the
Securities Act, a material fact necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading,
(B)
at no time during the period that begins on the earlier of the date of such Prospectus or Permitted Free Writing Prospectus and
the date such Prospectus or Permitted Free Writing Prospectus was filed with the Commission and ends on the date of this certificate did
such Prospectus or Permitted Free Writing Prospectus, as then amended or supplemented, include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading,
(C)
since the date of the Equity Distribution Agreement, there has occurred no event required to be set forth in an amended or supplemented
prospectus which has not been so set forth, and there has been no document required to be filed under the Exchange Act that upon such
filing would be deemed to be incorporated by reference into the Prospectus or any Permitted Free Writing Prospectus that has not been
so filed,
(D)
except as stated in the Prospectus or any Permitted Free Writing Prospectus, the Company has not incurred any material liabilities
or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or
paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus,
and any Permitted Free Writing Prospectus, there has not been any material change in the capital stock (other than a change in the number
of outstanding Common Stock due to sales of Shares pursuant to the Equity Distribution Agreement and the issuance of shares of Common
Stock upon the exercise or vesting of outstanding options or warrants or awards granted pursuant to any Specified Equity Plan), or any
material change in the short-term or long-term debt, or any Material Adverse Effect or any development involving a prospective Material
Adverse Effect (whether or not arising in the ordinary course of business), or any loss by strike, fire, flood, earthquake, accident or
other calamity, whether or not covered by insurance, incurred by the Company, and
(E)
except as stated in the base prospectus, the Prospectus, and any Permitted Free Writing Prospectus, there is not pending, or, to
the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by
any court or governmental agency, authority or body, or any arbitrator, which if determined adversely to the Company, would reasonably
be expected to result in a Material Adverse Effect.
Capitalized terms used herein without definition
shall have the meanings given to such terms in the Equity Distribution Agreement.
SCHEDULE 4
SUBSIDIARIES
Cellectar, Inc.
EXHIBIT A
FORM OF COMPANY COUNSEL OPINION
EXHIBIT B
FORM OF COMPANY IP COUNSEL OPINION
