Exhibit 10.6
SEPARATION AND SETTLEMENT AGREEMENT
BY AND BETWEEN
RELMADA THERAPEUTICS, INC.
AND
Ottavio
Vitolo, M.D.
This Separation and
Settlement Agreement (“Agreement”), dated as of April 1, 2020 (the “Effective Date”), is made by and between
Relmada Therapeutics, Inc., a Nevada company (“Relmada” or the “Company”), and Ottavio Vitolo, M.D. (“Employee”).
WHEREAS, Employee was
employed by the Company pursuant to the terms of an employment agreement effective March 28, 2018 (the “Employment Agreement”)
and Confidential Information and Invention Assignment Agreement, dated April 1, 2018 (the “Confidentiality Agreement”);
and
WHEREAS, Employee commenced
employment with Relmada on April 2, 2018 (the “Start Date”); and
WHEREAS, Employee and
the Company have mutually agreed that Employee’s employment with the Company terminated effective March 6, 2020 (the “Separation
Date”); and
WHEREAS, the Company
and Employee wish to memorialize the terms of Employee’s departure from the Company and each of Employee and the Company’s
rights and responsibilities in connection with his departure; and
WHEREAS, Employee has
agreed to release the Company and the Company has agreed to release Employee from any claims.
NOW, THEREFORE, in
consideration of the mutual promises made herein, the Company and Employee (collectively referred to as the “Parties”)
hereby agree as follows:
1.
Termination of Employment and Directorship. Employee's last day of employment will be March 6, 2020.
2. Separation
Payments. Pursuant to the satisfactory transition of all information and material requested by the Company, the Company agrees
to the following:
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A.
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The Company shall pay Employee $200,000, without any tax withholdings or other deductions (the
“Separation Payment”). The Separation Payment shall be delivered to Employee at this home address (71 Westland Avenue,
Newton, MA 02465) in a manner to ensure that it is received by Employee within 8 calendar days of the execution of this Agreement
by both Parties. Company shall issue to Employee a Form-1099 for the Separation Payment in the ordinary course of its business.
The Company shall also pay Employee $10,000 for attorney’s fees in connection with this matter.
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B.
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The Company shall also pay to Employee accrued salary of $6,557.40 through March 6, 2020, including
any March contributions to the 401k plan, and unused vacation days totaling $28,415.40; each payable on the next scheduled pay
period.
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C.
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If the Employee timely and properly elects COBRA continuation coverage under the Company’s
group health plan, the Employee shall only be required to pay active employee rates, as in effect from time to time, until September
6, 2020. At the conclusion of this period, the Employee shall be eligible to continue his coverage, pursuant to COBRA, and shall
be responsible for the entire COBRA premium for the remainder of the applicable COBRA continuation period.
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D.
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Employee’s options granted under the Company’s 2014 Stock Option and Equity Incentive
Plan shall continue to vest until September 6, 2020. Employee shall have until March 6, 2021 to exercise his vested options and
Employee shall be allowed to use a cashless exercise provision to exercise his vested options. Subject to federal securities laws,
Employee shall be free of any restrictions preventing him from exercising and selling his vested options as of the eighth day following
the execution of this Agreement.
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E.
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The Company shall include Employee’s name in the upcoming planned scientific publication
in connection with the Company’s completed Phase II trial for REL-1017.
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3. Separation,
Payments, Benefits and Related Matters.
(a) The
Parties agree that, except as provided in this Agreement, there are no further sums or benefits due or owing to Employee pursuant
to this Agreement or any prior employment agreement, amendment to such agreement, or any other legal or contractual obligation.
(b) The
Parties agree that, except for the Confidentiality Agreement, which shall remain in full force and effect, any other agreements
shall be of no further effect as of the date of this Agreement (other than Employee’s post-termination obligations under
Section 8 of the Employment Agreement, which shall remain in full force and effect).
4. Release
of Claims. In consideration for the obligations of the Company set forth in this Agreement, Employee, on behalf of himself,
and his respective heirs, executors, officers, directors, shareholders, employees, agents and consultants, investors, stockholders,
administrators and assigns, as may be applicable, hereby fully and forever release the Company and its respective heirs, executors,
officers, directors, employees, agents, investors, stockholders, administrators, parent, subsidiary and affiliate companies, predecessor
and successor companies and assigns, of and from any claim, duty, obligation or cause of action relating to any matters of any
kind that any of them may possess arising from any omissions, acts or facts that have occurred from the beginning of time up until
and including the date of this Agreement including, without limitation:
(a) any
and all claims relating to or arising from Employee’s employment relationship with the Company and the termination of those
relationships, including, without limitation Employee’s rights to salary and benefits except as provided herein;
(b) any
and all claims for wrongful discharge of employment; breach of contract, both express and implied; breach of a covenant of good
faith and fair dealing, both express and implied, negligent or intentional infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with contract or prospective economic advantage; negligence; and defamation;
(c) any
and all claims for violation of any federal, state or municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities
Act of 1990, the Older Workers Benefits Protection Act of 1990, the Americans with Disabilities Act, the Family and Medical Leave
Act, and all other federal, state and local laws dealing with discrimination on any basis, including but not limited to sex, race,
national origin, veteran status, religion, disability and age. This Agreement also includes any claim of wrongful termination,
based on any legal theory including but not limited to contract and personal injury;
(d) any
and all claims arising out of any other laws and regulations relating to employment or employment discrimination; and
(e) any
and all claims for attorneys’ fees and costs.
The Company and Employee
agree that the release set forth in this Paragraph 4 shall be and remain in effect in all respects as a complete general release
as to the matters released. This release does not extend to any payments or benefits receivable, or obligations incurred or specified
under this Agreement.
5.
Company Release. In consideration for the obligations of the Employee set forth in this Agreement, the Company, on behalf
of itself and its officers and directors hereby fully and forever release the Employee and his heirs, executors, agents, and assigns,
of and from any claim, duty, obligation or cause of action relating to any matters of any kind that any of them may possess arising
from any omissions, acts or facts that have occurred from the beginning of time up until and including the date of this Agreement.
The foregoing will not be deemed to release Employee from claims arising from acts or omissions by Employee that would constitute
fraud, violations of law, or a felony.
6. Covenants.
(a) Future
Acts. Employee agrees and covenants that (i) he shall not divulge to any person or entity other than the Company, including
its directors, officers, employees, and agents, without express written authorization of the CEO, any proprietary or confidential
information, whether written or oral, received or gained by him in the course of his employment by the Company or of his duties
with the Company (“Confidential Information”), nor shall he make use of any such Confidential Information on his own
behalf or on behalf of any other person or entity, for so long as such Confidential Information is not known to the general public;
(ii) he has or shall return or cause to be returned to the Company any and all property of the Company of any kind or description
whatsoever, including, but not limited to: (1) any Confidential Information, which has been furnished to him or is held by him,
at his residence or elsewhere, and shall not retain any copies, duplicates, reproductions or excerpts thereof; and (2) all personal
property belonging to the Company, such as, without limitation, Company records, records pertaining to projects that the Company
is or may become involved in, laptop computer, desktop computer and any peripheral items used for such equipment. Employee understands
and agrees that his obligations to the Company under this paragraph survive the termination of his relationship with the Company
under this Agreement; and (iii) that he has vacated or will vacate his office at the Company immediately, and shall return to the
Company premises only upon prior written consent of the CEO or his or her designee. For the avoidance of doubt, counsel for the
Parties may retain a copy of any Company correspondence or documents in counsel’s possession, and in any subsequent dispute
between the Parties such documents be accessed by the Parties.
(b) Confidentiality
of this Agreement. The Parties each agree to use their best efforts to maintain in confidence the existence of this Agreement,
the contents and terms of this Agreement, and the consideration for this Agreement (hereinafter collectively referred to as “Separation
Information”). Each Party hereto agrees to take every reasonable precaution to prevent disclosure of any Separation Information
to third parties, except as may be disclosed in a mutually agreed upon press release and except for disclosures required by law
or necessary to effectuate the terms of this Agreement. The Parties agree to take every precaution to disclose Separation Information
only to those employees, officers, directors, attorneys, accountants, financial advisors, prospective employers of Employee, governmental
entities and family members who have a reasonable need to know of such Separation Information. Employee acknowledges that the Company
has certain disclosure obligations that may supersede this Agreement.
(c) Nonsolicitation.
Employee agrees that for one year he will not either directly or indirectly solicit, induce, recruit or encourage any of the Company’s
officers or employees to terminate their relationship with the Company, or attempt to solicit, induce, recruit or encourage officers,
employees or of the Company, either for his own benefit or for the benefit of any other person or entity. Further, Employee agrees
that he will not use any confidential or proprietary information of the Company to attempt to negatively influence any of the Company’s
employees from remaining in the Company or to solicit or influence or attempt to solicit or influence any employee either directly
or indirectly, to join another Company, institution or other entity in competition with the business of the Company. Employee agrees
that he will be able to earn a livelihood without violating the restrictions set forth in this Paragraph 6(c). Further, for a period
of one year from the date of this Agreement, he shall not attempt to negatively influence any of the Company’s client’s
or customers from purchasing Company products or services or to solicit or influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of products and/or services to any person, firm, corporation, institution
or other entity in competition with the business of the Company. Employee agrees that the character and duration of this Paragraph
6(c) are reasonable in light of the circumstances as they exist on the date of this Agreement.
7. Non-Disparagement.
Responses to Inquiries. Except (X) when required to do so by a lawful order of a court of competent jurisdiction, any governmental
authority or agency, or any recognized subpoena power or (Y) as necessary to prosecute his rights against the Company under this
Agreement, Employee agrees (i) to refrain, and to cause any person acting on his behalf to refrain from any knowing disparagement
or defamation of the Company or its officers, directors, employees, or agents, or tortious interference with the contracts and
relationships of the Company and (ii) that he will respond to any inquiries from any third party that he "left to pursue other
business interests, enjoyed the opportunity to contribute to the Company and wishes the Company the best of luck in its future
endeavors." Except (X) when required to do so by a lawful order of a court of competent jurisdiction, any governmental authority
or agency, or any recognized subpoena power or (Y) as necessary to prosecute its rights against the Employee under this Agreement,
the Company agrees (i) to refrain from, and to cause any person acting on its behalf to refrain from any knowing disparagement
or defamation of Employee, or tortious interference with the contracts and relationships of Employee and (ii) that it will respond
to any inquiries from third parties regarding Employee's departure from the Company with a statement that "Employee has left
the Company to pursue other business interests. The Company is grateful for his contributions to the Company and wishes him the
best of luck in his future endeavors."
8. Breach
of this Agreement. The Parties acknowledge that upon material breach of any provision of this Agreement by Employee of the
Company, the Company or Employee, as the case may be, would sustain irreparable harm from such breach, and therefore, Employee
and Company hereby mutually represent, warrant and covenant that they have not violated and will not violate any of the terms or
provisions contained herein. Employee and the Company also mutually agree that in addition to any other remedies which they may
have for any material breach of this Agreement or otherwise, the Company or the Employee, as the case may be, shall be entitled
to obtain equitable relief including specific performance and injunctions restraining Employee or the Company, as the case may
be, from committing or continuing any such violation of this Agreement.
9. No
Admission. The parties acknowledge and agree that this Agreement does not constitute and should not be construed in any way
as an admission by any other party of (a) any wrongdoing or liability whatsoever, (b) any violation of the Employee’s or
the Company’s rights or those of any other person, or (c) any violation of any order, law, statute, duty or contract. The
Company specifically disclaims any liability for any alleged wrongdoing or liability, for any alleged violation of Employee’s
rights or those of any other person, or for any alleged violation of any order, law, statute, duty, or contract and Employee specifically
disclaims any liability for any alleged wrongdoing or liability, for any alleged violation of the Company’s rights or those
of any other person, or for any alleged violation of any order, law, statute, duty, or contract.
10. Authority.
The Company represents and warrants that the undersigned has the authority to act on behalf of the Company and to bind the Company
and all who may claim through it to the terms and conditions of this Agreement. Employee represents and warrants that he fully
understands the provisions contained in this agreement and that he has the capacity to act on his own behalf and on behalf of all
who might claim through him to bind them to the terms and conditions of this Agreement.
11. No
Representations. Neither Party has relied upon any representations or statements made by the other Party hereto which are not
specifically set forth in this Agreement.
12. Severability.
In the event any provision hereof becomes or is declared by a court or other tribunal of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect without said provision.
13. Arbitration/Attorneys
Fees. The Parties agree that Sections 10 and 14 of the Employment Agreement shall govern any disputes regarding this Agreement.
14. Successors.
This Agreement shall inure to the benefit of and be enforceable by Employee's heirs and beneficiaries. This Agreement shall inure
to the benefit of and be binding upon the Company and its respective successors, purchasers and assigns.
15. Entire
Agreement. This Agreement represents the entire agreement and understanding between the Company and Employee concerning Employee's
separation from the Company, and shall supersede and replace any and all prior agreements and understandings concerning Employee's
relationship with the Company and his compensation by the Company, including but not limited to the Employment Agreement (other
than as set forth in this Agreement).
16. No
Oral Modification. This Agreement may only be amended in writing signed by Employee and the Company.
17. Construction.
Whenever used in this Agreement, the singular shall be construed to include the plural and vice versa, where applicable, and the
use of the masculine, feminine or neuter gender shall include the other genders. The subject matter and language of this Agreement
has been the subject of negotiations between the parties and their respective counsel, and this Agreement has been jointly prepared
by their respective counsel. Accordingly, this Agreement shall not be construed against any party on the basis that this Agreement
was drafted by such party or its counsel. Headings of section and subsections are for convenience of reference only, and shall
not be construed as a part of this Agreement, or as limiting or defining the scope of any term or provision hereof.
18. Governing
Law. This Agreement shall be governed by the laws of the State of New York, without regard to its conflicts of law provisions.
19. Counterparts.
This Agreement may be executed in counterparts, and each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the undersigned. This Agreement may be executed via facsimile
or e-mail and signatures delivered via facsimile or e-mail shall be effective for all purposes.
20. Voluntary
Execution of Agreement. This Agreement is executed voluntarily and without any duress or undue influence on the part or behalf
of the Parties hereto, with the full intent of releasing all claims. The Parties acknowledge that:
(a)
they have read this Agreement;
(b) they
have been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of their own choice or
that they have voluntarily declined to seek such counsel;
(c) they
understand the terms and consequences of this Agreement and of the releases it contains; and
(d)
they are fully aware of the legal and binding effect of this Agreement.
21. Execution
and Revocation Rights.
(a) This
Agreement is intended to satisfy the requirements of the OWPBA. The Employee further agrees that he is advised by this Agreement,
as required by the OWPBA, that (i) this waiver and release does not apply to any rights and claims that may arise after the effective
date of this Agreement, (ii) he has the right to consult with an attorney prior to signing this Agreement, (iii) he may have at
least twenty one (21) days to consider this Agreement, (iv) he has seven (7) days following his execution of this Agreement to
revoke this Agreement, (v) this Agreement shall not be effective until the revocation period has expired, therefore making the
effective date the eighth (8th) day after this Agreement is executed by the Employee.
(b) By
executing this Agreement, the Employee acknowledges that the Employee has been advised by a representative of the Company that
he has twenty-one (21) days within which to consider this Agreement before signing the same and that the Employee has, in fact,
been given at least twenty-one (21) days within which to consider this Agreement prior to signing this Agreement.
(a) Following
his signing of the Agreement, Employee has the right to revoke the Agreement at any time within seven (7) calendar days of him
signing it, not including the date of his signing (the "Revocation Period"). Notice of Revocation shall be given in writing
and sent by overnight mail no later than the seventh (7th) day following the date Employee signs this Agreement. The Notice of
Revocation shall be sent to the Board of Directors of the Company. If Employee does not revoke the Agreement, this Agreement shall
be deemed to be effective and to be enforceable as of the last date set forth opposite any signature hereto. If Employee gives
Notice of Revocation during the Revocation Period in the manner specified above, this Agreement shall become null and void and
all rights and claims of the parties which would have existed, but for the execution of this Agreement shall be restored.
[Signatures Follow on Next Page]
IN
WITNESS WHEREOF, the Parties have executed this Separation and Settlement Agreement on the respective dates set forth below.
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RELMADA THERAPEUTICS, INC.
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Ottavio Vitolo, an Individual
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By:
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/s/ Sergio Traversa
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/s/ Ottavio Vitolo
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Its: CEO
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Date: April 1, 2020
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Date: April 1, 2020
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8
Exhibit 10.7
OPEN
MARKET SALE AGREEMENTSM
May 15,
2020
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Relmada
Therapeutics, Inc., a Nevada corporation (the “Company”), proposes, subject to the terms and conditions stated
herein, to issue and sell from time to time through Jefferies LLC, as sales agent and/or principal (the “Agent”),
shares of the Company’s common stock, par value $0.001 per share (the “Common Shares”), on the terms set
forth in this agreement (this “Agreement”).
Section 1. DEFINITIONS
(a) Certain
Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following
respective meanings:
“Affiliate”
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first- mentioned Person. The term “control” (including the terms “controlling,”
“controlled by” and “under common control with”) means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.
“Agency
Period” means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date
on which the Agent shall have placed the Maximum Program Amount pursuant to this Agreement and (y) the date this Agreement is terminated
pursuant to Section 7.
“Commission”
means the U.S. Securities and Exchange Commission.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
“Floor Price”
means the minimum price set by the Company in the Issuance Notice below which the Agent shall not sell Shares during the applicable
period set forth in the Issuance Notice, which may be adjusted by the Company at any time during the period set forth in the Issuance
Notice by delivering written notice of such change to the Agent and which in no event shall be less than $1.00 without the prior
written consent of the Agent, which may be withheld in the Agent’s sole discretion.
SM
“Open Market Sale Agreement” is a service mark of Jefferies LLC
“Issuance
Amount” means the aggregate Sales Price of the Shares to be sold by the Agent pursuant to any Issuance Notice.
“Issuance
Notice” means a written notice delivered to the Agent by the Company in accordance with this Agreement in the form attached
hereto as Exhibit A that is executed by its Chief Executive Officer, President or Chief Financial Officer.
“Issuance
Notice Date” means any Trading Day during the Agency Period that an Issuance Notice is delivered pursuant to Section
3(b)(i).
“Issuance
Price” means the Sales Price less the Selling Commission.
“Maximum Program
Amount” means Common Shares with an aggregate Sales Price of the lesser of (a) the number or dollar amount of Common
Shares registered under the effective Registration Statement (defined below) pursuant to which the offering is being made, (b)
the number of authorized but unissued Common Shares (less Common Shares issuable upon exercise, conversion or exchange of any outstanding
securities of the Company or otherwise reserved from the Company’s authorized capital stock), (c) the number or dollar amount
of Common Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), or (d) the number
or dollar amount of Common Shares for which the Company has filed a Prospectus (defined below).
“Person”
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental authority or other entity of any kind.
“Principal
Market” means the Nasdaq Capital Market or such other national securities exchange on which the Common Shares, including
any Shares, are then listed.
“Sales Price”
means the actual sale execution price of each Share placed by the Agent pursuant to this Agreement.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
“Selling Commission”
means three percent (3.0%) of the gross proceeds of Shares sold pursuant to this Agreement, or as otherwise agreed between the
Company and the Agent with respect to any Shares sold pursuant to this Agreement.
“Settlement
Date” means the second business day following each Trading Day during the period set forth in the Issuance
Notice on which Shares are sold pursuant to this Agreement, when the Company shall deliver to the Agent the amount of Shares sold
on such Trading Day and the Agent shall deliver to the Company the Issuance Price received on such sales.
“Shares”
shall mean the Company’s Common Shares issued or issuable pursuant to this Agreement.
“Trading Day”
means any day on which the Principal Market is open for trading.
Section 2. REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents
and warrants to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Issuance Notice Date, (3) each
Settlement Date, (4) each Triggering Event Date and (5) as of each Time of Sale (each of the times referenced above is referred
to herein as a “Representation Date”), except as may be disclosed in the Prospectus (including any documents
incorporated by reference therein and any supplements thereto) on or before a Representation Date:
(a) Registration
Statement. The Company has prepared and filed with the Commission a shelf registration statement on Form S-3 (File
No. 333-234262) that contains a base prospectus (the “Base Prospectus”). Such registration statement registers
the issuance and sale by the Company of the Shares under the Securities Act. The Company may file one or more additional registration
statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable,
with respect to the Shares. Except where the context otherwise requires, such registration statement(s), including any information
deemed to be a part thereof pursuant to Rule 430B under the Securities Act, including all financial statements, exhibits and schedules
thereto and all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under
the Securities Act as from time to time amended or supplemented, is herein referred to as the “Registration Statement,”
and the prospectus constituting a part of such registration statement(s), together with any prospectus supplement filed with the
Commission pursuant to Rule 424(b) under the Securities Act relating to a particular issuance of the Shares, including all documents
incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each
case, as from time to time amended or supplemented, is referred to herein as the “Prospectus,” except that if
any revised prospectus is provided to the Agent by the Company for use in connection with the offering of the Shares that is not
required to be filed by the Company pursuant to Rule 424(b) under the Securities Act, the term “Prospectus”
shall refer to such revised prospectus from and after the time it is first provided to the Agent for such use. The Registration
Statement at the time it originally became effective is herein called the “Original Registration Statement.”
As used in this Agreement, the terms “amendment” or “supplement” when applied to the Registration Statement
or the Prospectus shall be deemed to include the filing by the Company with the Commission of any document under the Exchange Act
after the date hereof that is or is deemed to be incorporated therein by reference.
All references in this
Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated
by reference in or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement or the Prospectus,
as the case may be, as of any specified date; and all references in this Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include, without limitation, the filing of any document under the Exchange
Act which is or is deemed to be incorporated by reference in or otherwise deemed under the Securities Act to be a part of or included
in the Registration Statement or the Prospectus, as the case may be, as of any specified date.
At
the time the Original Registration Statement was or will be declared effective and at the time the Company’s most recent
annual report on Form 10-K was filed with the Commission, if later, the Company met the then-applicable requirements for use
of Form S-3 under the Securities Act. During the Agency Period, each time the Company files an annual report on Form
10-K the Company will meet the then-applicable requirements for use of Form S-3 under the Securities Act.
(b) Compliance
with Registration Requirements. The Original Registration Statement and any Rule 462(b) Registration Statement have been
declared effective by the Commission under the Securities Act. The Company has complied to the Commission’s satisfaction
with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been
instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission.
The
Prospectus when filed complied or will comply in all material respects with the Securities Act and, if filed with the Commission
through its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”) (except as may be permitted by
Regulation S-T under the Securities Act), was identical to the copy thereof delivered to the Agent for use in connection with
the issuance and sale of the Shares. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective
amendment thereto, at the time it became or becomes effective and at each Representation Date, complied and will comply in all
material respects with the Securities Act and 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. As of the date of this
Agreement, the Prospectus and any Free Writing Prospectus (as defined below) considered together (collectively, the “Time
of Sale Information”) did not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Prospectus, as
amended or supplemented, as of its date and at each Representation Date, did not and 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 three 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 furnished by the Agent to the Company consists of the information described in Section
6 below. 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. The Registration Statement and the offer and sale
of the Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all material respects
with said rule.
(c) Ineligible
Issuer Status. The Company is not an “ineligible issuer” in connection with the offering of the Shares pursuant
to Rules 164, 405 and 433 under the Securities Act. Any Free Writing Prospectus that the Company is required to file pursuant to
Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the
Securities Act. Each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of Rule 433 under the Securities Act including timely filing with the Commission or retention
where required and legending, and each such Free Writing Prospectus, as of its issue date and at all subsequent times through the
completion of the issuance and sale of the Shares did not, does not and will not include any information that conflicted, conflicts
with or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated
by reference therein. Except for the Free Writing Prospectuses, if any, and electronic road shows, if any, furnished to the Agent
before first use, the Company has not prepared, used or referred to, and will not, without the Agent’s prior consent, prepare,
use or refer to, any Free Writing Prospectus.
(d) Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act, as
applicable, and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, and any Free Writing Prospectus or amendment or supplement thereto complied and will
comply in all material respects with the requirements of the Exchange Act, and, when read together with the other information in
the Prospectus, at the time the Registration Statement and any amendments thereto become effective and at each Time of Sale (as
defined below), as the case may be, will not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the 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.
(f) This
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(g) Authorization
of the Shares. The Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued
and delivered by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable,
and the issuance and sale of the Shares is not subject to any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Shares, that have not been validly waived in writing.
(h) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as have been duly waived.
(i) No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement and the Prospectus, subsequent
to the respective dates as of which information is given in the Registration Statement and the Prospectus: (i) there has been
no material adverse change, or any development that could be expected to result in a material adverse change, in (A) the condition,
financial or otherwise, or in the earnings, business, properties, operations, operating results, assets, liabilities or prospects,
whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as
one entity or (B) the ability of the Company to consummate the transactions contemplated by this Agreement or perform its obligations
hereunder (any such change being referred to herein as a “Material Adverse Change”); (ii) the Company
and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent,
including without limitation any losses or interference with their business from fire, explosion, flood, earthquakes, accident
or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order
or decree, that are material, individually or in the aggregate, to the Company and its subsidiaries, considered as one entity,
and have not entered into any transactions not in the ordinary course of business; and (iii) there has not been any material
decrease in the capital stock or any material increase in any short-term or long-term indebtedness of the Company or its subsidiaries
and there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid
to the Company or other subsidiaries, by any of the Company’s subsidiaries on any class of capital stock, or any repurchase
or redemption by the Company or any of its subsidiaries of any class of capital stock.
(j) Independent
Accountants. Marcum LLP, which has expressed its opinion with respect to the financial statements (which term as used in this
Agreement includes the related notes thereto) filed with the Commission as a part of the Registration Statement and the Prospectus,
is (i) an independent registered public accounting firm as required by the Securities Act, the Exchange Act, and the rules of the
Public Company Accounting Oversight Board (“PCAOB”), (ii) in compliance with the applicable requirements relating
to the qualification of accountants under Rule 2-01 of Regulation S-X under the Securities Act and (iii) a registered public accounting
firm as defined by the PCAOB whose registration has not been suspended or revoked and who has not requested such registration to
be withdrawn.
(k) Financial
Statements. The financial statements filed with the Commission as a part of the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the results of their
operations, changes in stockholders’ equity and cash flows for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved,
except as may be expressly stated in the related notes thereto. 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. No other financial
statements or supporting schedules are required to be included in the Registration Statement or the Prospectus. To the Company’s
knowledge, no person who has been suspended or barred from being associated with a registered public accounting firm, or who has
failed to comply with any sanction pursuant to Rule 5300 promulgated by the PCAOB, has participated in or otherwise aided the preparation
of, or audited, the financial statements, supporting schedules or other financial data filed with the Commission as a part of the
Registration Statement and the Prospectus.
(l) Company’s
Accounting System. The Company and each of its subsidiaries make and keep accurate books and records and maintain a system
of 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 financial
statements in conformity with generally accepted accounting principles as applied in the United States and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv)
the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement and the Prospectus fairly presents the information called for in all material respects
and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(m) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting. The Company has established
and maintains disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange Act), which (i) are
designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to
the Company’s principal executive officer and its principal financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated by
management of the Company for effectiveness as of the end of the Company’s most recent fiscal quarter; and (iii) are effective
in all material respects to perform the functions for which they were established. Since the end of the Company’s most recent
audited fiscal year, there have been no significant deficiencies or material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting. The Company is not aware of any change in its internal control over financial reporting that has occurred during its
most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.
(n) Incorporation
and Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into
and perform its obligations under this Agreement. The Company is duly qualified as a foreign corporation to transact business and
is in good standing in the State of New York and each other jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business.
(o) Subsidiaries.
Each of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities
Act) has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, partnership or limited
liability company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization and
has the power and authority (corporate or other) to own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus. Each of the Company’s subsidiaries is duly qualified as a foreign corporation,
partnership or limited liability company, as applicable, to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business. All of the
issued and outstanding capital stock or other equity or ownership interests of each of the Company’s subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim. None of the outstanding capital
stock or equity interest in any subsidiary was issued in violation of preemptive or similar rights of any security holder of such
subsidiary. The constitutive or organizational documents of each of the subsidiaries comply in all material respects with the requirements
of applicable laws of its jurisdiction of incorporation or organization and are in full force and effect. The Company does not
own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit
21 to the Company’s most recent Annual Report on Form 10-K.
(p) Capitalization
and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth
in the Registration Statement and the Prospectus (other than for subsequent issuances, if any, pursuant to employee benefit plans,
or upon the exercise of outstanding options or warrants, in each case described in the Registration Statement and the Prospectus).
The Common Shares (including the Shares) conform in all material respects to the description thereof contained in the Prospectus.
All of the issued and outstanding Common Shares have been duly authorized and validly issued, are fully paid and nonassessable
and have been issued in compliance with all federal and state securities laws. None of the outstanding Common Shares was issued
in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights
to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company
or any of its subsidiaries other than those described in the Registration Statement and the Prospectus. The descriptions of the
Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder,
set forth in the Registration Statement and the Prospectus accurately and fairly presents the information required to be shown
with respect to such plans, arrangements, options and rights.
(q) Stock
Exchange Listing. The Common Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and are listed on
the Principal Market, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the Common Shares under the Exchange Act or delisting the Common Shares from the Principal Market, nor has the Company received
any notification that the Commission or the Principal Market is contemplating terminating such registration or listing. To the
Company’s knowledge, it is in compliance with all applicable listing requirements of the Principal Market.
(r) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries
is in violation of its charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as
applicable, or is in default (or, with the giving of notice or lapse of time, would be in default) (“Default”)
under any indenture, loan, credit agreement, note, lease, license agreement, contract, franchise or other instrument (including,
without limitation, any pledge agreement, security agreement, mortgage or other instrument or agreement evidencing, guaranteeing,
securing or relating to indebtedness) to which the Company or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of their respective properties or assets are subject (each, an “Existing Instrument”),
except for such Defaults as could not be expected, individually or in the aggregate, to result in a Material Adverse Change. The
Company’s execution, delivery and performance of this Agreement, consummation of the transactions contemplated hereby and
by the Registration Statement and the Prospectus and the issuance and sale of the Shares (including the use of proceeds from the
sale of the Shares as described in the Registration Statement and the Prospectus under the caption “Use of Proceeds”)
(i) have been duly authorized by all necessary corporate action and will not result in any violation of the provisions of
the charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable, of the
Company or any subsidiary (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering
Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument
and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable
to the Company or any of its subsidiaries. No consent, approval, authorization or other order of, or registration or filing with,
any court or other governmental or regulatory authority or agency, is required for the Company’s execution, delivery and
performance of this Agreement and consummation of the transactions contemplated hereby and by the Registration Statement and the
Prospectus, except such as have been obtained or made by the Company and are in full force and effect under the Securities Act
and such as may be required under applicable state securities or blue sky laws or the Financial Industry Regulatory Authority (“FINRA”).
As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or with the giving
of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of its subsidiaries.
(s) Compliance
with Laws. The Company and its subsidiaries have been and are in compliance with all applicable laws, rules and regulations,
except where failure to be so in compliance could not be expected, individually or in the aggregate, to result in a Material Adverse
Change.
(t) No
Material Actions or Proceedings. There is no action, suit, proceeding, inquiry or investigation brought by or before any legal
or governmental entity now pending or, to the knowledge of the Company, threatened, against or affecting the Company or any of
its subsidiaries, which could be expected, individually or in the aggregate, to result in a Material Adverse Change. No material
labor dispute with the employees of the Company or any of its subsidiaries, or with the employees of any principal supplier, manufacturer,
customer or contractor of the Company, exists or, to the knowledge of the Company, is threatened or imminent.
(u) Intellectual
Property Rights. The Company and its subsidiaries own, or have obtained valid and enforceable licenses for, the inventions,
patent applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property
described in the Registration Statement and the Prospectus as being owned or licensed by them or which are necessary for the conduct
of their respective businesses as currently conducted or as currently proposed to be conducted (collectively, “Intellectual
Property”) and, to the Company’s knowledge, the conduct of their respective businesses does not and will not infringe,
misappropriate or otherwise conflict in any material respect with any such rights of others. The Intellectual Property of the Company
has not been adjudged by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, and the Company
is unaware of any facts which would form a reasonable basis for any such adjudication. To the Company’s knowledge: (i) there
are no third parties who have rights to any Intellectual Property, except for reversionary rights of third-party licensors with
respect to Intellectual Property that is disclosed in the Registration Statement and the Prospectus as licensed to the Company
or one or more of its subsidiaries and the Company and each of its subsidiaries, taken as a whole, have taken all reasonable steps
necessary to secure their respective interests in the Intellectual Property from their respective employees and contractors; (ii)
the Company and its subsidiaries are the sole owners of the Intellectual Property owned by them and have the valid right to use
such Intellectual Property; and (iii) there is no infringement by third parties of any Intellectual Property. To the Company’s
knowledge, there is no prior art material to any patent or patent application of the Intellectual Property of the Company or its
subsidiaries that may render any U.S. patent held by the Company or its subsidiaries invalid or any U.S. patent application held
by the Company or any of its subsidiaries unpatentable. There is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property, and the Company
is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging the
validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which would form a reasonable
basis for any such action, suit, proceeding or claim; or (C) asserting that the Company or any of its subsidiaries infringes or
otherwise violates, or would, upon the commercialization of any product or service described in the Registration Statement or the
Prospectus as under development, infringe or violate, any patent, trademark, trade name, service name, copyright, trade secret
or other proprietary rights of others, and the Company is unaware of any facts which would form a reasonable basis for any such
action, suit, proceeding or claim. To the Company’s knowledge, the Company and its subsidiaries have complied with the terms
of each agreement pursuant to which Intellectual Property has been licensed to the Company or any subsidiary, and all such agreements
are in full force and effect. To the Company’s knowledge, there are no material defects in any of the patents or patent applications
included in the Intellectual Property. The Company and its subsidiaries have taken all reasonable steps to protect, maintain and
safeguard their Intellectual Property, including the execution of appropriate nondisclosure, confidentiality agreements and invention
assignment agreements and invention assignments with their employees, and no employee of the Company is in or has been in violation
of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement,
non-solicitation agreement, nondisclosure agreement, or any restrictive covenant to or with a former employer where the basis of
such violation relates to such employee’s employment with the Company. All patents and patent applications owned by or exclusively
licensed to the Company or its subsidiaries or under which the Company or any of its subsidiaries has rights have, to the knowledge
of the Company, been duly and properly filed and each issued patent is being diligently maintained. The duty of candor and good
faith as required by the United States Patent and Trademark Office during the prosecution of the United States patents and patent
applications included in the Intellectual Property have been complied with; and in all foreign offices having similar requirements,
all such requirements have been complied with. None of the Company owned Intellectual Property or technology (including information
technology and outsourced arrangements) employed by the Company or its subsidiaries has been obtained or is being used by the Company
or its subsidiary in violation of any contractual obligation binding on the Company or its subsidiaries or any of their respective
officers, directors or employees or otherwise in violation of the rights of any persons. The product candidates described in the
Registration Statement and the Prospectus as under development by the Company or any subsidiary fall within the scope of the claims
of one or more patents or patent applications owned by, or exclusively licensed to, the Company or any subsidiary.
(v) All
Necessary Permits, etc. The Company and its subsidiaries possess such valid and current certificates, authorizations or permits
required by state, federal or foreign regulatory agencies or bodies to conduct their respective businesses as currently conducted
and as described in the Registration Statement or the Prospectus (“Permits”). Neither the Company nor any of
its subsidiaries is in violation of, or in default under, any of the Permits or has received any notice of proceedings relating
to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit.
(w) Title
to Properties. The Company and its subsidiaries have good and marketable title to all of the real and personal property and
other assets reflected as owned in the financial statements referred to in Section 2(k) above (or elsewhere in the Registration
Statement or the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities,
adverse claims and other defects. The real property, improvements, equipment and personal property held under lease by the Company
or any of its subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company
or such subsidiary.
(x) Tax
Law Compliance. The Company and its subsidiaries have filed all necessary federal, state and foreign income and franchise tax
returns or have properly requested extensions thereof and have paid all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied against any of them except as may be being contested in good
faith and by appropriate proceedings. The Company has made adequate charges, accruals and reserves in the applicable financial
statements referred to in Section 2(k) above in respect of all federal, state and foreign income and franchise taxes for all periods
as to which the tax liability of the Company or any of its subsidiaries has not been finally determined. The Company and its subsidiaries
do not have any written notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely
to the Company or its subsidiaries.
(y) Insurance.
Each of the Company and its subsidiaries are insured by recognized, financially sound and reputable institutions with policies
in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their businesses
including, but not limited to, policies covering real and personal property owned or leased by the Company and its subsidiaries
against theft, damage, destruction, acts of vandalism and earthquakes and policies covering the Company and its subsidiaries for
product liability claims and clinical trial liability claims. The Company has no reason to believe that it or any of its subsidiaries
will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that
could not be expected to result in a Material Adverse Change. Neither the Company nor any of its subsidiaries has been denied any
insurance coverage which it has sought or for which it has applied.
(z) Compliance
with Environmental Laws. Except as could not be expected, individually or in the aggregate, to result in a Material Adverse
Change: (i) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”); (ii) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance with their requirements; (iii) there
are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its
subsidiaries; and (iv) there are no events or circumstances that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(aa) ERISA
Compliance. The Company and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance
in all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company or any of its subsidiaries,
any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the “Code”) of which the Company or such
subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates. No “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit
liabilities” (as defined under ERISA). Neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred
or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any
“employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each employee benefit plan established
or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would cause the loss of
such qualification.
(bb) Company
Not an “Investment Company.” The Company is not, and will not be, either after receipt of payment for the
Shares or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration
Statement or the Prospectus, required to register as an “investment company” under the Investment Company Act of 1940,
as amended (the “Investment Company Act”).
(cc) No
Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries
has taken, directly or indirectly, any action designed to or that might cause or result in stabilization or manipulation of the
price of the Common Shares or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange
Act (“Regulation M”)) with respect to the Shares, whether to facilitate the sale or resale of the Shares or
otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(dd) Related-Party
Transactions. There are no business relationships or related-party transactions involving the Company or any of its subsidiaries
or any other person required to be described in the Registration Statement or the Prospectus that have not been described as required.
(ee) FINRA
Matters. All of the information provided to the Agent or to counsel for the Agent by the Company, its counsel, its officers
and directors and the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection
with the offering of the Shares is true, complete, correct and compliant with FINRA’s rules and any letters, filings or other
supplemental information provided to FINRA pursuant to FINRA Rules or NASD Conduct Rules is true, complete and correct.
(ff) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement,
or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and
accurate. To the extent required, the Company has obtained the written consent to the use of such data from such sources.
(gg) Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated
in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302
and 906 related to certifications, in each case to the extent that they are applicable to the Company.
(hh) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor, to the best of the Company’s
knowledge, any employee or agent of the Company or any subsidiary, has made any contribution or other payment to any official of,
or candidate for, any federal, state or foreign office in violation of any law or of the character required to be disclosed in
the Registration Statement or the Prospectus.
(ii) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries nor any director, officer, or employee of the Company
or any of its subsidiaries, nor to the knowledge of the Company, any agent, affiliate or other person acting on behalf of the Company
or any of its subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its subsidiaries (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity;
(ii) made or taken any act in furtherance of an offer, promise, or authorization of any direct or indirect unlawful payment or
benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or public
international organization, or any political party, party official, or candidate for political office; (iii) violated or is in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the UK
Bribery Act 2010, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, authorized, requested, or
taken an act in furtherance of any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment or benefit
. The Company and its subsidiaries and, to the knowledge of the Company, the Company’s affiliates have conducted their respective
businesses in compliance with the FCPA and applicable anti-corruption laws and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(jj) Money
Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related
or similar applicable 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 best knowledge of the Company, threatened.
(kk) Sanctions.
Neither the Company nor any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of the Company, after
due inquiry, any agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries is currently the subject
or the target of, or 50% or more owned or otherwise controlled by a person who is the subject or target of, any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the
U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom,
or other relevant sanctions authority (collectively, “Sanctions”); nor is the Company or any of its subsidiaries located,
organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation,
Crimea, Cuba, Iran, North Korea, and Syria (the “Sanctioned Countries”); and the Company will not directly or indirectly
use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, or any joint
venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any
country or territory, that at the time of such financing, is the subject or the target of Sanctions or in any other manner that
will result in a violation by any person (including any person participating in the transaction whether as underwriter, advisor,
investor or otherwise) of applicable Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged
in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction
is or was the subject or the target of Sanctions or with any Sanctioned Country.
(ll) Brokers.
Except pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from the Company any brokerage
or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(mm) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by
Section 27A of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus
(i) was so included by the Company in good faith and with reasonable basis after due consideration by the Company of the underlying
assumptions, estimates and other applicable facts and circumstances and (ii) is accompanied by meaningful cautionary statements
identifying those factors that could cause actual results to differ materially from those in such forward-looking statement. No
such statement was made with the knowledge of an executive officer or director of the Company that it was false or misleading.
(nn) No
Outstanding Loans or Other Extensions of Credit. The Company does not have any outstanding extension of credit, in the
form of a personal loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions
of credit as are expressly permitted by Section 13(k) of the Exchange Act.
(oo) 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 privacy, integrity,
continuous operation, redundancy and security of all IT Systems and data (including “Personal Data,” sensitive, confidential
or regulated data, collectively “Data”) used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or
tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or
account number; (ii) any information which would qualify as “personally identifying information” under the Federal
Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; (iv) any information which would qualify
as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended
by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any
other piece of information that identifies or allows the identification of such natural person, or his or her family or household,
or permits the collection or analysis of any data related to an identified person’s health or sexual orientation. There have
been no breaches, violations, outages or unauthorized uses of or accesses to or disclosure of the Data, except for those that would
not result in a Material Adverse Change or have been remedied without material cost or liability or the duty to notify any person,
governmental or regulatory authority or third party, nor any incidents under internal review or investigations relating to the
same. The Company and its subsidiaries are presently, and at all prior terms were, 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 Data and to the protection
of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(pp) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all
applicable state, federal, provincial, local and foreign data privacy and security laws, regulations, ordinances, codes, rules,
and binding guidance issued by any governmental entity, including without limitation HIPAA, EU General Data Protection Regulation
(“GDPR”), the California Consumer Privacy Act, and those that pertain to the privacy, protection or security
of Personal Data (collectively, the “Data Privacy Laws”). To ensure compliance with the Data 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 all individuals required by applicable Data Privacy Laws, 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 Data Privacy
Laws 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 applicable Data 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 applicable Data
Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any applicable
Data Privacy Laws.
(qq) Clinical
Data and Regulatory Compliance. The preclinical tests and clinical trials, and other studies (collectively, “studies”)
that are described in, 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 the protocols, procedures and controls designed for such
studies and submitted to the relevant regulatory authorities; each description of the results of such studies is accurate and complete
in all material respects and fairly presents the data derived from such studies, and the Company and its subsidiaries have no knowledge
of any other studies the results of which are inconsistent with, or otherwise call into question, the results described or referred
to in the Registration Statement or the Prospectus; the Company and its subsidiaries have made all such filings and obtained all
such approvals as may be required by the Food and Drug Administration of the U.S. Department of Health and Human Services or any
committee thereof or from any other U.S. or foreign government or drug or medical device regulatory agency, or health care facility
Institutional Review Board (collectively, the “Regulatory Agencies”); neither the Company nor any of its subsidiaries
has received any notice of, or correspondence from, any Regulatory Agency requiring the termination, suspension or modification
of any clinical trials that are described or referred to in the Registration Statement or the Prospectus; and the Company and its
subsidiaries have each operated and currently are in compliance in all material respects with all applicable rules and regulations
of the Regulatory Agencies.
(rr) Compliance
with Health Care Laws. The Company and its subsidiaries are, and at all times have been, in compliance with all Health
Care Laws. For purposes of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Section 301 et seq.), and the regulations promulgated thereunder; (ii) all applicable federal, state, local and foreign
health care fraud and abuse laws, and applicable laws governing government funded or sponsored healthcare programs; (iii) HIPAA,
as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.); and (iv)
all other local, state, federal, national, supranational and foreign laws, relating to the regulation of the Company or its subsidiaries,
and (v) the regulations promulgated pursuant to such statutes and any state or non-U.S. counterpart thereof. Neither the Company
nor any of its subsidiaries has received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any court or arbitrator or governmental or regulatory authority alleging that any product operation
or activity is in violation of any Health Care Laws nor, to the Company’s knowledge, is any such claim, action, suit, proceeding,
hearing, enforcement, investigation, arbitration or other action threatened. The Company and its subsidiaries have filed, maintained
or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
as required by any Health Care Laws, and all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and accurate on the date filed in all material respects (or were corrected or supplemented
by a subsequent submission). Neither the Company nor any of its subsidiaries is a party to any corporate integrity agreements,
monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory
authority. Additionally, neither the Company, any of its subsidiaries nor any of their respective employees, officers, directors,
or agents has been excluded, suspended or debarred from participation in any U.S. federal health care program or human clinical
research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other similar
action that could reasonably be expected to result in debarment, suspension, or exclusion.
(ss) No
Rights to Purchase Preferred Stock. The issuance and sale of the Shares as contemplated hereby will not cause any holder
of any shares of capital stock, securities convertible into or exchangeable or exercisable for capital stock or options, warrants
or other rights to purchase capital stock or any other securities of the Company to have any right to acquire any shares of preferred
stock of the Company.
(tt) Dividend
Restrictions. Except as disclosed in the Prospectus, no subsidiary of the Company is prohibited or restricted, directly or
indirectly, from paying dividends to the Company, or from making any other distribution with respect to such subsidiary’s
equity securities or from repaying to the Company or any other subsidiary of the Company any amounts that may from time to time
become due under any loans or advances to such subsidiary from the Company or from transferring any property or assets to the Company
or to any other subsidiary.
(uu) Duties,
Transfer Taxes, Etc. No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other
taxes are payable by the Agent in the United States or any political subdivision or taxing authority thereof or therein in connection
with the execution, delivery or performance of this Agreement by the Company or the sale and delivery by the Company of the Shares.
(vv) Other
Underwriting Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the
market” or continuous equity transaction.
Any certificate signed
by any officer or representative of the Company or any of its subsidiaries and delivered to the Agent or counsel for the Agent
in connection with an issuance of Shares shall be deemed a representation and warranty by the Company to the Agent as to the matters
covered thereby on the date of such certificate.
The
Company acknowledges that the Agent and, for purposes of the opinions to be delivered pursuant to Section 4(o) hereof,
counsel to the Company and counsel to the Agent, will rely upon the accuracy and truthfulness of the foregoing representations
and hereby consents to such reliance.
Section 3. ISSUANCE AND SALE OF COMMON
SHARES
(a) Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company and the Agent agree that the Company may from time to time seek to sell Shares through
the Agent, acting as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate Sales Price of up
to the Maximum Program Amount, based on and in accordance with Issuance Notices as the Company may deliver, during the Agency Period.
(b) Mechanics
of Issuances.
(i)
Issuance Notice. Upon the terms and subject to the conditions set forth herein, on any Trading Day during the Agency Period
on which the conditions set forth in Section 5(a) and Section 5(b) shall have been satisfied, the Company
may exercise its right to request an issuance of Shares by delivering to the Agent an Issuance Notice; provided, however,
that (A) in no event may the Company deliver an Issuance Notice to the extent that (I) the sum of (x) the aggregate Sales Price
of the requested Issuance Amount, plus (y) the aggregate Sales Price of all Shares issued under all previous Issuance Notices effected
pursuant to this Agreement, would exceed the Maximum Program Amount; and (B) prior to delivery of any Issuance Notice, the period
set forth for any previous Issuance Notice shall have expired or been terminated. An Issuance Notice shall be considered delivered
on the Trading Day that it is received by e-mail to the persons set forth in Schedule A hereto and confirmed by the Company by
telephone (including a voicemail message to the persons so identified), with the understanding that, with adequate prior written
notice, the Agent may modify the list of such persons from time to time.
(ii) Agent
Efforts. Upon the terms and subject to the conditions set forth in this Agreement, upon the receipt of an Issuance Notice,
the Agent will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the Shares
with respect to which the Agent has agreed to act as sales agent, subject to, and in accordance with the information specified
in, the Issuance Notice, unless the sale of the Shares described therein has been suspended, cancelled or otherwise terminated
in accordance with the terms of this Agreement. For the avoidance of doubt, the parties to this Agreement may modify an Issuance
Notice at any time provided they both agree in writing to any such modification.
(iii) Method
of Offer and Sale. The Shares may be offered and sold (A) in negotiated transactions with the consent of the Company or (B)
by any other method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the
Securities Act, including block transactions, sales made directly on the Principal Market or sales made into any other existing
trading market of the Common Shares. Nothing in this Agreement shall be deemed to require either party to agree to the method of
offer and sale specified in the preceding sentence, and (except as specified in clause (A) above) the method of placement of any
Shares by the Agent shall be at the Agent’s discretion.
(iv) Confirmation
to the Company. If acting as sales agent hereunder, the Agent will provide written confirmation to the Company no later than
the opening of the Trading Day next following the Trading Day on which it has placed Shares hereunder setting forth the number
of shares sold on such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof.
(v)
Settlement. Each issuance of Shares will be settled on the applicable Settlement Date for such issuance of Shares and,
subject to the provisions of Section 5, on or before each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Agent or its designee’s
account at The Depository Trust Company through its Deposit/Withdrawal At Custodian (DWAC) System, or by such other means of delivery
as may be mutually agreed upon by the parties hereto and, upon receipt of such Shares, which in all cases shall be freely tradable,
transferable, registered shares in good deliverable form, the Agent will deliver, by wire transfer of immediately available funds,
the related Issuance Price in same day funds delivered to an account designated by the Company prior to the Settlement Date. The
Company may sell Shares to the Agent as principal at a price agreed upon at each relevant time Shares are sold pursuant to this
Agreement (each, a “Time of Sale”).
(vi) Suspension
or Termination of Sales. Consistent with standard market settlement practices, the Company or the Agent may, upon notice to
the other party hereto in writing or by telephone (confirmed immediately by verifiable email), suspend any sale of Shares, and
the period set forth in an Issuance Notice shall immediately terminate; provided, however, that (A) such suspension and
termination shall not affect or impair either party’s obligations with respect to any Shares placed or sold hereunder prior
to the receipt of such notice; (B) if the Company suspends or terminates any sale of Shares after the Agent confirms such sale
to the Company, the Company shall still be obligated to comply with Section 3(b)(v) with respect to such Shares;
and (C) if the Company defaults in its obligation to deliver Shares on a Settlement Date, the Company agrees that it will hold
the Agent harmless against any loss, claim, damage or expense (including, without limitation, penalties, interest and reasonable
legal fees and expenses), as incurred, arising out of or in connection with such default by the Company. The parties hereto acknowledge
and agree that, in performing its obligations under this Agreement, the Agent may borrow Common Shares from stock lenders in the
event that the Company has not delivered Shares to settle sales as required by subsection (v) above, and may use the Shares to
settle or close out such borrowings. The Company agrees that no such notice shall be effective against the Agent unless it is made
to the persons identified in writing by the Agent pursuant to Section 3(b)(i).
(vii) No
Guarantee of Placement, Etc. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be
successful in placing Shares; (B) the Agent will incur no liability or obligation to the Company or any other Person if it does
not sell Shares; and (C) the Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement,
except as otherwise specifically agreed by the Agent and the Company.
(viii) Material
Non-Public Information. Notwithstanding any other provision of this Agreement, the Company and the Agent agree that the Company
shall not deliver any Issuance Notice to the Agent, and the Agent shall not be obligated to place any Shares, during any period
in which the Company is in possession of material non-public information.
(c) Fees.
As compensation for services rendered, the Company shall pay to the Agent, on the applicable Settlement Date, the Selling Commission
for the applicable Issuance Amount (including with respect to any suspended or terminated sale pursuant to Section 3(b)(vi))
by the Agent deducting the Selling Commission from the applicable Issuance Amount.
(d) Expenses.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder
and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the
issuance and delivery of the Shares (including all printing and engraving costs); (ii) all fees and expenses of the registrar
and transfer agent of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Shares; (iv) all fees and expenses of the Company’s counsel, independent public or certified public
accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates
of experts), the Prospectus, any Free Writing Prospectus (as defined below) prepared by or on behalf of, used by, or referred to
by the Company, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, attorneys’ fees
and expenses incurred by the Company or the Agent in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Shares for offer and sale under the state securities or blue sky laws
or the provincial securities laws of Canada, and, if requested by the Agent, preparing and printing a “Blue Sky Survey”
or memorandum and a “Canadian wrapper”, and any supplements thereto, advising the Agent of such qualifications, registrations,
determinations and exemptions; (vii) the reasonable fees and disbursements of the Agent’s counsel, including the reasonable
fees and expenses of counsel for the Agent in connection with, FINRA review, if any, and approval of the Agent’s participation
in the offering and distribution of the Shares; (viii) the filing fees incident to FINRA review, if any; (ix) the costs and
expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing
of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the
representatives, employees and officers of the Company and, with the prior written approval of the Company, of the Agent and any
such consultants, and the cost of any aircraft chartered with the prior written approval of the Company in connection with the
road show; and (x) the fees and expenses associated with listing the Shares on the Principal Market. The fees and disbursements
of Agent’s counsel pursuant to subsections (vi) and (vii) above shall not exceed $50,000 in connection with the first
Issuance Notice.
Section 4. ADDITIONAL COVENANTS
The Company covenants
and agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:
(a) Exchange
Act Compliance. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission all reports and
documents required to be filed under Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required
by the Exchange Act; and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual reports on Form 10-K, a summary
detailing, for the relevant reporting period, (1) the number of Shares sold through the Agent pursuant to this Agreement and (2)
the net proceeds received by the Company from such sales or (B) prepare a prospectus supplement containing, or include in such
other filing permitted by the Securities Act or Exchange Act (each an “Interim Prospectus Supplement”), such
summary information and, at least once a quarter and subject to this Section 4, file such Interim Prospectus Supplement pursuant
to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430B under the Securities
Act)).
(b) Securities
Act Compliance. After the date of this Agreement, the Company shall promptly advise the Agent in writing (i) of the receipt
of any comments of, or requests for additional or supplemental information from, the Commission; (ii) of the time and date of any
filing of any post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement or any amendment or
supplement to the Prospectus, any Free Writing Prospectus; (iii) of the time and date that any post-effective amendment to the
Registration Statement or any Rule 462(b) Registration Statement becomes effective; and (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, any Rule
462(b) Registration Statement or any amendment or supplement to the Prospectus or of any order preventing or suspending the use
of any Free Writing Prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation
the Common Shares from any securities exchange upon which they are listed for trading or included or designated for quotation,
or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order
at any time, the Company will use its best efforts to obtain the lifting of such order as soon as practicable. Additionally, the
Company agrees that it shall comply with the provisions of Rule 424(b) and Rule 433, as applicable, under the Securities Act and
will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) or Rule 433 were received
in a timely manner by the Commission.
(c) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an 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
when the Prospectus is delivered to a purchaser, not misleading, or if in the opinion of the Agent or counsel for the Agent it
is otherwise necessary to amend or supplement the Prospectus to comply with applicable law, including the Securities Act, the Company
agrees (subject to Section 4(d) and 4(f)) to promptly prepare, file with the Commission and furnish at its own expense to
the Agent, amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will
not include an 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 when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with applicable law including the Securities Act. Neither the Agent’s consent to, or
delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s obligations under Sections
4(d) and 4(f).
(d) Agent’s
Review of Proposed Amendments and Supplements. Prior to amending or supplementing the Registration Statement (including any
registration statement filed under Rule 462(b) under the Securities Act) or the Prospectus (excluding any amendment or supplement
through incorporation of any report filed under the Exchange Act, and excluding any prospectus supplement not relating to the sale
of the Shares hereunder), the Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each such proposed amendment or supplement, and the Company shall not file or use any
such proposed amendment or supplement without the Agent’s prior consent, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(e)
Use of Free Writing Prospectus. Neither the Company nor the Agent has prepared, used, referred to or distributed,
or will prepare, use, refer to or distribute, without the other party’s prior written consent, any “written communication”
that constitutes a “free writing prospectus” as such terms are defined in Rule 405 under the Securities Act with respect
to the offering contemplated by this Agreement (any such free writing prospectus being referred to herein as a “Free
Writing Prospectus”).
(f) Free
Writing Prospectuses. The Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each proposed Free Writing Prospectus or any amendment or supplement thereto to be prepared
by or on behalf of, used by, or referred to by the Company and the Company shall not file, use or refer to any proposed Free Writing
Prospectus or any amendment or supplement thereto without the Agent’s consent. The Company shall furnish to the Agent, without
charge, as many copies of any Free Writing Prospectus prepared by or on behalf of, or used by the Company, as the Agent may reasonably
request. If at any time when a prospectus is required by the Securities Act (including, without limitation, pursuant to Rule 173(d))
to be delivered in connection with sales of the Shares (but in any event if at any time through and including the date of this
Agreement) there occurred or occurs an event or development as a result of which any Free Writing Prospectus prepared by or on
behalf of, used by, or referred to by the Company conflicted or would conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading,
the Company shall promptly amend or supplement such Free Writing Prospectus to eliminate or correct such conflict or so that the
statements in such Free Writing Prospectus as so amended or supplemented will not include an 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 prevailing
at such subsequent time, not misleading, as the case may be; provided, however, that prior to amending or supplementing
any such Free Writing Prospectus, the Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of such proposed amended or supplemented Free Writing Prospectus and the Company shall not
file, use or refer to any such amended or supplemented Free Writing Prospectus without the Agent’s consent.
(g) Filing
of Agent Free Writing Prospectuses. The Company shall not to take any action that would result in the Agent or the Company
being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a Free Writing Prospectus prepared
by or on behalf of the Agent that the Agent otherwise would not have been required to file thereunder.
(h) Copies
of Registration Statement and Prospectus. After the date of this Agreement through the last time that a prospectus is required
by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of
the Shares, the Company agrees to furnish the Agent with copies (which may be electronic copies) of the Registration Statement
and each amendment thereto, and with copies of the Prospectus and each amendment or supplement thereto in the form in which it
is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities
as the Agent may reasonably request from time to time; and, if the delivery of a prospectus is required under the Securities Act
or under the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any
period set forth in an Issuance Notice in connection with the offering or sale of the Shares and if at such time any event has
occurred 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 any material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, to notify the Agent and to request that the Agent suspend offers
to sell Shares (and, if so notified, the Agent shall cease such offers as soon as practicable); and if the Company decides to amend
or supplement the Registration Statement or the Prospectus as then amended or supplemented, to advise the Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment or supplement to
the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if during such same period the Agent is required to deliver a prospectus in respect of
transactions in the Shares, the Company shall promptly prepare and file with the Commission such an amendment or supplement.
(i) Blue
Sky Compliance. The Company shall cooperate with the Agent and counsel for the Agent to qualify or register the Shares for
sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities
laws of those jurisdictions designated by the Agent, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Shares. The Company shall not be required to qualify as
a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where
it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Agent
promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering,
sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain
the withdrawal thereof as soon as practicable.
(j) Earnings
Statement. As soon as practicable, the Company will make generally available to its security holders and to the Agent an earnings
statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter of the
Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(k) Listing;
Reservation of Shares. (a) The Company will maintain the listing of the Shares on the Principal Market; and (b) the Company
will reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy
its obligations under this Agreement.
(l) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(m) Due
Diligence. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due diligence review
conducted by the Agent in connection with the transactions contemplated hereby, including, without limitation, providing information
and making available documents and senior corporate officers, during normal business hours and at the Company’s principal
offices, as the Agent may reasonably request from time to time.
(n) Representations
and Warranties. The Company acknowledges that each delivery of an Issuance Notice and each delivery of Shares on a Settlement
Date shall be deemed to be (i) an affirmation to the Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of such Issuance Notice or of such Settlement Date, as the
case may be, as though made at and as of each such date, except as may be disclosed in the Prospectus (including any documents
incorporated by reference therein and any supplements thereto); and (ii) an undertaking that the Company will advise the Agent
if any of such representations and warranties will not be true and correct as of the Settlement Date for the Shares relating to
such Issuance Notice, as though made at and as of each such date (except that such representations and warranties shall be deemed
to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).
(o) Deliverables
at Triggering Event Dates; Certificates. The Company agrees that on or prior to the date of the first Issuance Notice and,
during the term of this Agreement after the date of the first Issuance Notice, upon:
(A) the
filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)), by means
of a post-effective amendment, sticker or supplement, but not by means of incorporation of documents by reference into the Registration
Statement or Prospectus;
(B) the
filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A or Form
10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K or quarterly
report on Form 10-Q), in each case, of the Company; or
(C) the
filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than
information “furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of
Form 8-K relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial
Accounting Standards No. 144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion;
(any
such event, a “Triggering Event Date”), the Company shall furnish the Agent (but in the case of clause (C) above
only if the Agent reasonably determines that the information contained in such current report on Form 8-K of the Company is material)
with a certificate as of the Triggering Event Date, in the form and substance satisfactory to the Agent and its counsel, substantially
similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented, (A) confirming that the representations and warranties of the Company contained
in this Agreement are true and correct, (B) that the Company has performed all of its obligations hereunder to be performed on
or prior to the date of such certificate and as to the matters set forth in Section 5(a)(iii) hereof, and (C) containing
any other certification that the Agent shall reasonably request. The requirement to provide a certificate under this Section
4(o) shall be waived for any Triggering Event Date occurring at a time when no Issuance Notice is pending or a suspension is
in effect, which waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale of
Shares hereunder (which for such calendar quarter shall be considered a Triggering Event Date) and the next occurring Triggering
Event Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Triggering Event Date
when a suspension was in effect and did not provide the Agent with a certificate under this Section 4(o), then before the Company
delivers the instructions for the sale of Shares or the Agent sells any Shares pursuant to such instructions, the Company shall
provide the Agent with a certificate in conformity with this Section 4(o) dated as of the date that the instructions for the sale
of Shares are issued.
(p) Legal
Opinions. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to
which the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding
the date of this Agreement, a negative assurances letter and the written legal opinion of Sichenzia Ross Ference LLP, counsel to
the Company, Wood Herron & Evans LLP, intellectual property counsel to the Company, and Hyman, Phelps & McNamara, P.C.,
regulatory counsel to the Company, each dated the date of delivery, in form and substance reasonably satisfactory to Agent and
its counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate
to the Registration Statement and the Prospectus as then amended or supplemented. In lieu of such opinions for subsequent periodic
filings, in the discretion of the Agent, the Company may furnish a reliance letter from such counsel to the Agent, permitting the
Agent to rely on a previously delivered opinion letter, modified as appropriate for any passage of time or Triggering Event Date
(except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended
or supplemented as of such Triggering Event Date).
(q) Comfort
Letter. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to
which the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding
the date of this Agreement, the Company shall cause Marcum LLP, the independent registered public accounting firm who has audited
the financial statements included or incorporated by reference in the Registration Statement, to furnish the Agent a comfort letter,
dated the date of delivery, in form and substance reasonably satisfactory to the Agent and its counsel, substantially similar to
the form previously provided to the Agent and its counsel; provided, however, that any such comfort letter will only be required
on the Triggering Event Date specified to the extent that it contains financial statements filed with the Commission under the
Exchange Act and incorporated or deemed to be incorporated by reference into a Prospectus. If requested by the Agent, the Company
shall also cause a comfort letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence of any material
transaction or event requiring the filing of a current report on Form 8-K containing material amended financial information of
the Company, including the restatement of the Company’s financial statements. The Company shall be required to furnish no
more than one comfort letter hereunder per calendar quarter.
(r)
Secretary’s Certificate. On or prior to the date of the first Issuance Notice and on or prior to each Triggering
Event Date, the Company shall furnish the Agent a certificate executed by the Secretary of the Company, signing in such capacity,
dated the date of delivery (i) certifying that attached thereto are true and complete copies of the resolutions duly adopted by
the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby (including, without limitation, the issuance of the Shares pursuant to this Agreement), which authorization
shall be in full force and effect on and as of the date of such certificate, (ii) certifying and attesting to the office, incumbency,
due authority and specimen signatures of each Person who executed this Agreement for or on behalf of the Company, and (iii) containing
any other certification that the Agent shall reasonably request.
(s)
Agent’s Own Account; Clients’ Account. The Company consents to the Agent trading, in compliance with applicable
law, in the Common Shares for the Agent’s own account and for the account of its clients at the same time as sales of the
Shares occur pursuant to this Agreement.
(t) Investment
Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares
in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment
Company Act.
(u) Market
Activities. The Company will not take, directly or indirectly, any action designed to or that might be reasonably expected
to cause or result in stabilization or manipulation of the price of the Shares or any other reference security, whether to facilitate
the sale or resale of the Shares or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all
applicable provisions of Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply
with respect to the Shares or any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then
promptly upon notice from the Agent (or, if later, at the time stated in the notice), the Company will, and shall cause each of
its affiliates to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as interpreted
by the Commission) did apply. The Company shall promptly notify the Agent if it no longer meets the requirements set forth in Section
(d) of Rule 102.
(v) Notice
of Other Sale. Without the written consent of the Agent, the Company (A) will not, directly or indirectly, (i) offer to
sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible
into or exchangeable for Common Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common
Shares, (ii) effect a reverse stock split, recapitalization, share consolidation, reclassification or similar transaction
affecting the outstanding Common Shares, (iii) submit or file any registration statement under the Securities Act in respect
of any Common Shares or securities convertible into or exchangeable for Common Shares (other than as contemplated by this
Agreement with respect to the Shares), or (iv) publicly announce the intention to do any of the foregoing, during the period
beginning on the third Trading Day immediately prior to the date on which any Issuance Notice is delivered to the Agent
hereunder and ending on the third Trading Day immediately following the Settlement Date with respect to Shares sold pursuant
to such Issuance Notice; and (B) will not, directly or indirectly, enter into any other “at the market” or
continuous equity transaction to offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any
Common Shares (other than the Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for
Common Shares, warrants or any rights to purchase or acquire, Common Shares in connection with such “at the
market” or continuous equity transactions prior to the termination of this Agreement; provided, however, that such
restrictions in clauses (A) and (B) above will not be required in connection with the Company’s (i) issuance or sale of
Common Shares, options to purchase Common Shares or Common Shares issuable upon the exercise of options or other equity
awards pursuant to any employee or director share option, incentive or benefit plan, share purchase or ownership plan,
long-term incentive plan, dividend reinvestment plan, inducement award under Nasdaq rules or other compensation plan of the
Company or its subsidiaries, as in effect on the date of this Agreement, (ii) issuance or sale of Common Shares issuable upon
exchange, conversion or redemption of securities or the exercise or vesting of warrants, options or other equity awards
outstanding at the date of this Agreement, and (iii) modification of any outstanding options, warrants of any rights to
purchase or acquire Common Shares.
Section
5. CONDITIONS TO DELIVERY OF ISSUANCE NOTICES AND TO SETTLEMENT
(a) Conditions
Precedent to the Right of the Company to Deliver an Issuance Notice and the Obligation of the Agent to Sell Shares. The right
of the Company to deliver an Issuance Notice hereunder is subject to the satisfaction, on the date of delivery of such Issuance
Notice, and the obligation of the Agent to use its commercially reasonable efforts to place Shares during the applicable period
set forth in the Issuance Notice is subject to the satisfaction, on each Trading Day during the applicable period set forth in
the Issuance Notice, of each of the following conditions:
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(i)
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Accuracy of the Company’s Representations
and Warranties; Performance by the Company. The Company shall have delivered the certificate required to be delivered pursuant
to Section 4(o) on or before the date on which delivery of such certificate is required pursuant to Section 4(o).
The Company shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by the Company at or prior to such date, including, but not limited to, the covenants
contained in Section 4(p), Section 4(q) and Section 4(r).
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(ii)
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No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated hereby that prohibits or directly and materially adversely
affects any of the transactions contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect
of prohibiting or materially adversely affecting any of the transactions contemplated by this Agreement.
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(iii)
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Material Adverse Changes. Except as disclosed in the Prospectus and the Time of Sale Information,
(a) in the judgment of the Agent there shall not have occurred any Material Adverse Change; and (b) there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any
of its subsidiaries by any “nationally recognized statistical rating organization” as such term is defined for purposes
of Section 3(a)(62) of the Exchange Act.
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(iv)
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No Suspension of Trading in or Delisting of Common Shares; Other Events. The trading of
the Common Shares (including without limitation the Shares) shall not have been suspended by the Commission, the Principal Market
or FINRA and the Common Shares (including without limitation the Shares) shall have been approved for listing or quotation on and
shall not have been delisted from the the Nasdaq Stock Market, the New York Stock Exchange or any of their constituent markets.
There shall not have occurred (and be continuing in the case of occurrences under clauses (i) and (ii) below) any of
the following: (i) trading or quotation in any of the Company’s securities shall have been suspended or limited by the
Commission or by the Principal Market or trading in securities generally on either the Principal Market shall have been suspended
or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission
or the FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York, authorities; or (iii) there
shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any substantial change or development involving a prospective substantial
change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is
material and adverse and makes it impracticable to market the Shares in the manner and on the terms described in the Prospectus
or to enforce contracts for the sale of securities.
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(b)
Documents Required to be Delivered on each Issuance Notice Date. The Agent’s obligation to use its commercially
reasonable efforts to place Shares hereunder shall additionally be conditioned upon the delivery to the Agent on or before the
Issuance Notice Date of a certificate in form and substance reasonably satisfactory to the Agent, executed by the Chief Executive
Officer, President or Chief Financial Officer of the Company, to the effect that all conditions to the delivery of such Issuance
Notice shall have been satisfied as at the date of such certificate (which certificate shall not be required if the foregoing
representations shall be set forth in the Issuance Notice).
(c) No
Misstatement or Material Omission. Agent shall not have advised the Company that the Registration Statement, the Prospectus
or the Times of Sale Information, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s
reasonable opinion is material, or omits to state a fact that in the Agent’s reasonable opinion is material and is required
to be stated therein or is necessary to make the statements therein not misleading.
(d) Agent
Counsel Legal Opinion. Agent shall have received from Cooley LLP, counsel for Agent, such opinion or opinions, on or before
the date on which the delivery of the Company counsel legal opinion is required pursuant to Section 4(p), with respect to such
matters as Agent may reasonably require, and the Company shall have furnished to such counsel such documents as they request for
enabling them to pass upon such matters.
Section 6. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification
of the Agent. The Company agrees to indemnify and hold harmless the Agent, its officers and employees, and each person, if
any, who controls the Agent within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability
or expense, as incurred, to which the Agent or such officer, employee or controlling person may become subject, under the Securities
Act, the Exchange Act, other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions
where Shares have been offered or sold or at common law or otherwise (including in settlement of any litigation), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not
misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Free Writing Prospectus
that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading and to reimburse the
Agent and each such officer, employee and controlling person for any and all expenses (including the fees and disbursements of
counsel chosen by the Agent) as such expenses are reasonably incurred by the Agent or such officer, employee or controlling person
in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense
to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Agent expressly
for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto),
it being understood and agreed that the only such information furnished by the Agent to the Company consists the information described
in subsection (b) below. The indemnity agreement set forth in this Section 6(a) shall be in addition to any liabilities
that the Company may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. The Agent agrees to indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which the Company
or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal
or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered or sold
or at common law or otherwise (including in settlement of any litigation), arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any
information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any Free Writing Prospectus that the Company has used, referred
to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; but, for each of (i) and (ii) above, only to the extent
arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company by the Agent expressly for use in the Registration Statement,
any such Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that
the only such information furnished by the Agent to the Company consists of the information set forth in the first
sentence of the ninth paragraph under the caption “Plan of Distribution” in the Prospectus, and to
reimburse the Company and each such director, officer and controlling person for any and all expenses (including the fees and disbursements
of one counsel chosen by the Company) as such expenses are reasonably incurred by the Company or such officer, director or controlling
person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action. The indemnity agreement set forth in this Section 6(b) shall be in addition to any liabilities that the Agent
or the Company may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 6 of notice
of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 6, notify the indemnifying party in writing of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution
or otherwise than under the indemnity agreement contained in this Section 6 or to the extent it is not prejudiced as a proximate
result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends
to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval
by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section
6 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate
counsel (together with local counsel), representing the indemnified parties who are parties to such action), which counsel (together
with any local counsel) for the indemnified parties shall be selected by the indemnified party (in the case of counsel for the
indemnified parties referred to in Section 6(a) and Section 6(b) above), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party, in each of which cases the fees and expenses of counsel shall be at the expense
of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 6 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 fees and expenses of counsel as contemplated by Section 6(c) hereof, 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; and (ii) 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 includes an unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(e) Contribution.
If the indemnification provided for in this Section 6 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result
of any losses, claims, damages, liabilities or expenses referred to therein (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 hand, from the offering of the Shares
pursuant to this Agreement; 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 hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, 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 hand, in connection with the offering
of the Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total gross proceeds from
the offering of the Shares (before deducting expenses) received by the Company bear to the total commissions received by the Agent.
The relative fault of the Company, on the one hand, and the Agent, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, on the one hand, or the Agent, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The
amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in Section 6(c), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section
6(c) with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this
Section 6(e); provided, however, that no additional notice shall be required with respect to any action for which
notice has been given under Section 6(c) for purposes of indemnification.
The
Company and the Agent agree that it would not be just and equitable if contribution pursuant to this Section 6(e)
were 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 Section 6(e).
Notwithstanding
the provisions of this Section 6(e), the Agent shall not be required to contribute any amount in excess of the Selling
Commission received by the Agent in connection with the offering contemplated hereby. 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. For purposes of this Section 6(e), each officer and employee of the Agent and
each person, if any, who controls the Agent within the meaning of the Securities Act or the Exchange Act shall have the same rights
to contribution as the Agent, and each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the
same rights to contribution as the Company.
Section 7. TERMINATION & SURVIVAL
(a) Term.
Subject to the provisions of this Section 7, the term of this Agreement shall continue from the date of this Agreement until
the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant to this Section 7.
(b) Termination;
Survival Following Termination.
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(i)
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Either party may terminate this Agreement prior to the end of the Agency Period, by giving written
notice as required by this Agreement, upon ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company
terminates this Agreement after the Agent confirms to the Company any sale of Shares, the Company shall remain obligated to comply
with Section 3(b)(v) with respect to such Shares and (B) Section 2, Section 3(d),
Section 6, Section 7 and Section 8 shall survive termination of this Agreement. If termination shall
occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of
this Agreement.
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(ii)
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In
addition to the survival provision of Section 7(b)(i), the respective indemnities, agreements, representations,
warranties and other statements of the Company, of its officers and of the Agent set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent or the Company or any
of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary
notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement.
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Section 8. MISCELLANEOUS
(a) Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated
hereby as soon as practicable following the date of this Agreement, and may file with the Commission a Current Report on Form 8-K,
with this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and
the Company shall consult with the Agent prior to making such disclosures, and the parties hereto shall use all commercially reasonable
efforts, acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto.
No party hereto shall issue thereafter any press release or like public statement (including, without limitation, any disclosure
required in reports filed with the Commission pursuant to the Exchange Act) related to this Agreement or any of the transactions
contemplated hereby without the prior written approval of the other party hereto, except as may be necessary or appropriate in
the reasonable opinion of the party seeking to make disclosure to comply with the requirements of applicable law or stock exchange
rules. If any such press release or like public statement is so required, the party making such disclosure shall consult with the
other party prior to making such disclosure, and the parties shall use all commercially reasonable efforts, acting in good faith,
to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.
(b) No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the transactions contemplated by this
Agreement, including the determination of any fees, are arm’s-length commercial transactions between the Company and the
Agent, (ii) when acting as a principal under this Agreement, the Agent is and has been acting solely as a principal is not the
agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (iii) the Agent has not assumed
nor will assume an advisory or fiduciary responsibility in favor of the Company with respect to the transactions contemplated hereby
or the process leading thereto (irrespective of whether the Agent has advised or is currently advising the Company on other matters)
and the Agent does not have any obligation to the Company with respect to the transactions contemplated hereby except the obligations
expressly set forth in this Agreement, (iv) the Agent and its affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (v) the Agent has not provided any legal, accounting, regulatory or tax advice
with respect to the transactions contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate.
(c) Research
Analyst Independence. The Company acknowledges that the Agent’s research analysts and research departments are required
to and should be independent from their respective investment banking divisions and are subject to certain regulations and internal
policies, and as such the Agent’s research analysts may hold views and make statements or investment recommendations and/or
publish research reports with respect to the Company or the offering that differ from the views of their respective investment
banking divisions. The Company understands that the Agent is a full service securities firm and as such from time to time, subject
to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
(d) Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered, sent by electronic mail or telecopied and confirmed to the parties
hereto as follows:
If
to the Agent:
Jefferies LLC
520 Madison Avenue
New York, NY 10022
Facsimile: (646) 619-4437
Attention: General Counsel
with a copy (which shall not
constitute notice) to:
Cooley LLP
55 Hudson Yards
New York, NY 10001
Facsimile: (212) 479-6275
Attention: Daniel I. Goldberg, Esq.
If to the Company:
Relmada Therapeutics, Inc.
880 Third Avenue, 12th Floor
New York, New York 10022
Attention: Chief Executive Officer
Email: st@relmada.com
with a copy (which shall not
constitute notice) to:
Sichenzia Ross Ference LLP
1185 Avenue of the Americas,
37th Floor
New York, New York 10036
Attention: Gregory Sichenzia
Facsimile: (212) 930-9725
Any
party hereto may change the address for receipt of communications by giving written notice to the others in accordance with this
Section 8(d).
(e) Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers
and directors and controlling persons referred to in Section 6, and in each case their respective successors, and no other
person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Shares
as such from the Agent merely by reason of such purchase.
(f) Partial
Unenforceability. The invalidity or unenforceability of any Article, Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any Article, Section,
paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to
be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
(g) Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State
of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of
or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States
of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each case located
in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such
court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process,
summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to
the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and
agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been
brought in an inconvenient forum.
(h) General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.
This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument, and may be delivered by facsimile transmission or by electronic
delivery of a portable document format (PDF) file. 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. The Article and Section headings herein are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
[Signature Page Immediately Follows]
If the foregoing is
in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon
this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms
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Very truly yours,
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RELMADA THERAPEUTICS, INC.
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By:
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/s/ Maged Shenouda
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Name: Maged Shenouda
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Title: Chief Financial Officer
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The foregoing Agreement is hereby confirmed
and accepted by the Agent in New York, New York as of the date first above written.
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JEFFERIES LLC
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By:
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/s/ Michael Magarro
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Name: Michael Magarro
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Title: Managing Director
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EXHIBIT A
ISSUANCE NOTICE
May 15, 2020
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attn: [__________]
Reference is made to the Open Market Sale
Agreement between Relmada Therapeutics, Inc. (the “Company”) and Jefferies LLC (the “Agent”)
dated as of May 15, 2020. The Company confirms that all conditions to the delivery of this Issuance Notice are satisfied
as of the date hereof.
Date
of Delivery of Issuance Notice (determined pursuant to Section 3(b)(i)): _______________________
Issuance Amount (equal to the total Sales Price for such Shares):
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$
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Number of days in selling period:
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First date of selling period:
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Last date of selling period:
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Settlement Date(s) if other than standard T+2 settlement:
Floor Price Limitation (in no event less
than $1.00 without the prior written consent of the Agent, which consent may be withheld in the Agent’s sole discretion):
$ ____ per share
Schedule A
Notice Parties
The Company
Sergio Traversa
Maged Shenouda
Chuck Ence
The Agent
Mike Magarro
Don Lynaugh
Jack Fabbri
