Exhibit 1.1
4,895,834 Shares
NORTHWEST BIOTHERAPEUTICS, INC.
Common Stock
and Warrants to Purchase up to 2,447,917
Shares of Common Stock
UNDERWRITING AGREEMENT
November 20, 2013
Oppenheimer & Co. Inc.
as Representative of the several
Underwriters named in Schedule I hereto
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Northwest Biotherapeutics,
Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions contained herein, to sell
to you and the other underwriters named on Schedule I to this Agreement (the “Underwriters”), for whom you are acting
as Representative (the “Representative”), an aggregate of 4,895,834 shares (the “Firm Shares”) of the Company's
common stock, $0.001 par value per share (the “Common Stock”) and (ii) warrants to purchase 2,447,917 shares of Common
Stock (the “Firm Warrants”, and together with the Firm Shares, the “Firm Securities”). All of the Firm
Securities are to be issued and sold by the Company. The respective amounts of the Firm Securities to be purchased by each of the
several Underwriters are set forth opposite their names on Schedule I hereto. In addition, the Company proposes to grant to the
Underwriters an option to purchase up to an additional (i) 734,374 shares of Common Stock (the “Option Shares”,
and together with the Firm Shares, the “Shares”) and (ii) warrants to purchase 367,187 shares of Common Stock (the
“Option Warrants”, and together with the Option Shares, the “Option Securities”) together from the Company
for the purpose of covering over-allotments in connection with the sale of the Firm Securities. The Firm Securities and the Option
Securities are collectively called the “Securities.” The Firm Warrants and the Option Warrants are referred to herein
as the “Warrants” and the shares of Common Stock underlying the Warrants are referred to herein as the “Warrant
Shares.”
The Company has prepared
and filed in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and
the published rules and regulations thereunder (the “Rules”) adopted by the Securities and Exchange Commission (the
“Commission”) a “shelf” registration statement on Form S-3 (No. 333-185898), which became effective on
February 5, 2013, including a base prospectus dated February 5, 2013 (the “Base Prospectus”) relating to common stock,
preferred stock, warrants, debt securities and/or units of the Company that may be sold from time to time by the Company in accordance
with Rule 415 of the Securities Act, and such amendments thereof as may have been required to the date of this Agreement. Copies
of such Registration Statement (including all amendments thereof and all documents deemed incorporated by reference therein) and
of the related Base Prospectus have heretofore been delivered by the Company or are otherwise available to you.
The term “Registration
Statement” as used in this Agreement means the registration statement, including all exhibits, financial schedules and all
documents and information deemed to be part of the Registration Statement by incorporation by reference or otherwise, as amended
from time to time, including the information (if any) contained in the form of final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and deemed to be part thereof at the time of effectiveness pursuant to Rules 430A and 430B of the Rules.
If the Company has filed
an abbreviated registration statement to register additional Securities pursuant to Rule 462(b) under the Rules (the “462(b)
Registration Statement”), then any reference herein to the Registration Statement shall also be deemed to include such 462(b)
Registration Statement. The term “Preliminary Prospectus” means the Base Prospectus, together with any preliminary
prospectus supplement used or filed with the Commission pursuant to Rule 424 of the Rules, in the form provided to the Underwriters
by the Company for use in connection with the offering of the Securities. The term “Prospectus” means the Base Prospectus,
any Preliminary Prospectus and any amendments or further supplements to such prospectus filed with the Commission, and including,
without limitation, the final prospectus supplement, filed pursuant to and within the limits described in Rule 424(b) with the
Commission in connection with the proposed sale of the Securities contemplated by this Agreement through the date of such prospectus
supplement. The term “Effective Date” shall mean each date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective. Unless otherwise stated herein, any reference herein to the Registration Statement,
any Preliminary Prospectus, the Statutory Prospectus (as hereinafter defined) and the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, including pursuant to Item 12 of Form S-3 under the Securities Act, which
were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date hereof
or are so filed hereafter. Any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, any Preliminary Prospectus, the Statutory Prospectus or the Prospectus shall be deemed
to refer to and include any such document filed or to be filed under the Exchange Act after the date of the Registration Statement,
any such Preliminary Prospectus, the Statutory Prospectus or Prospectus, as the case may be, and deemed to be incorporated therein
by reference.
The Company understands
that the Underwriters propose to make a public offering of the Securities, as set forth in and pursuant to the Statutory Prospectus
(as hereinafter defined) and the Prospectus, as soon after the Effective Date and the date of this Agreement as the Representative
deems advisable. The Company hereby confirms that the Underwriters and dealers have been authorized to distribute or cause to be
distributed each Preliminary Prospectus, and each Issuer Free Writing Prospectus (as hereinafter defined) and are authorized to
distribute the Prospectus (as from time to time amended or supplemented if the Company furnishes amendments or supplements thereto
to the Underwriters).
1. Sale,
Purchase, Delivery and Payment for the Securities. On the basis of the representations, warranties and agreements contained
in, and subject to the terms and conditions of, this Agreement:
(a) The
Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at a purchase price of $4.488 per Share and corresponding Warrant, the number of Firm Shares
and Firm Warrants set forth opposite the name of such Underwriter under the columns “Number of Firm Shares to be
Purchased” and “Number of Firm Warrants to be Purchased,” respectively, on Schedule I to this Agreement,
subject to adjustment in accordance with Section 8 hereof. The Firm Shares are to be sold as units, with each unit consisting
of (i) one share of our Common Stock and (ii) a warrant to purchase 0.50 of a share of our Common Stock.
(b) The Company
hereby grants to the several Underwriters an option to purchase, severally and not jointly, (i) all or any part of the Option Shares
at a purchase price of $4.47865 per Option Share and (ii) all or any part of the Option Warrants at a purchase price of $0.00935
per Option Warrant. The number of Option Securities to be purchased by each Underwriter shall be the same percentage (adjusted
by the Representative to eliminate fractions) of the total number of Option Securities to be purchased by the Underwriters as such
Underwriter is purchasing of the Firm Securities. Such option may be exercised only to cover over-allotments in the sales of the
Firm Securities by the Underwriters and may be exercised in whole or in part at any time on or before 12:00 noon, New York City
time, on the business day before the Firm Securities Closing Date (as defined below), and from time to time thereafter within 30
days after the date of this Agreement, in each case upon written, facsimile or telegraphic notice, or verbal or telephonic notice
confirmed by written, facsimile or telegraphic notice, by the Representative to the Company no later than 12:00 noon, New York
City time, on the business day before the Firm Securities Closing Date or at least two business days before the Option Securities
Closing Date (as defined below), as the case may be, setting forth the number of Option Securities to be purchased and the time
and date (if other than the Firm Securities Closing Date) of such purchase.
(c) Payment of the
purchase price for, and delivery of certificates for, the Firm Securities shall be made at the offices of Oppenheimer & Co.
Inc., 85 Broad Street, New York, New York 10004, at 10:00 a.m., New York City time, on the third business day following the date
of this Agreement or at such time on such other date, not later than ten (10) business days after the date of this Agreement, as
shall be agreed upon by the Company and the Representative (such time and date of delivery and payment are called the “Firm
Securities Closing Date”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters,
payment of the purchase price, and delivery of the certificates, for such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representative and the Company, on each date of delivery as specified
in the notice from the Representative to the Company (such time and date of delivery and payment are called the “Option Securities
Closing Date”). The Firm Securities Closing Date and any Option Securities Closing Date are called, individually, a “Closing
Date” and, together, the “Closing Dates.”
(d) Payment shall
be made to the Company by wire transfer of immediately available funds or by certified or official bank check or checks payable
in New York Clearing House (same day) funds drawn to the order of the Company against delivery of the certificates to the Representative
for the respective accounts of the Underwriters for the Securities to be purchased by them.
(e) Certificates
evidencing the Firm Shares shall be registered in such names and shall be in such denominations as the Representative shall request
at least two full business days before the Firm Securities Closing Date or, in the case of Option Shares, on the day of notice
of exercise of the option as described in Section 1(b) and shall be delivered by or on behalf of the Company to the Representative
through the facilities of the Depository Trust Company (“DTC”) for the account of the Underwriters. Within two full
business days of a request by the Representative, the Company shall deliver to the Representative or its designee, the Firm Warrants
or Option Warrants as applicable in such names and in such denominations as the Representative shall request. The Company will
cause the certificates representing the Securities to be made available for checking and packaging, at such place as is designated
by the Representative, on the full business day before the Firm Securities Closing Date (or the Option Securities Closing Date
in the case of the Option Securities). The Shares and the Warrants will be issued separately and may be transferred separately
immediately upon issuance.
2. Representations
and Warranties of the Company. The Company represents and warrants to each Underwriter as of the date hereof, as of the Firm
Securities Closing Date and as of each Option Securities Closing Date (if any), as follows (except as set forth in a disclosure
schedule delivered to the Representative on the date hereof):
(a) The Company
meets the requirements for use of Form S-3 under the Securities Act, including the transaction requirements set forth in General
Instruction 1.B.1 of such form. The Company is not, and has not been for at least 12 calendar months prior to the filing of the
Registration Statement, a shell company. The Company filed with the Commission the Registration Statement on such Form S-3, including
a Base Prospectus, for registration under the Securities Act of the offering and sale of the Securities, and the Company has prepared
and used a Preliminary Prospectus in connection with the offer and sale of the Securities. When the Registration Statement or any
amendment thereof or supplement thereto was or is declared effective and as of the date of the most recent amendment to the Registration
Statement, it (i) complied or will comply, in all material respects, with the requirements of the Securities Act and the Rules
and the Exchange Act and the rules and regulations of the Commission thereunder and (ii) did not or will not, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the
statements therein not misleading. When any Preliminary Prospectus or Prospectus was first filed with the Commission (whether filed
as part of the Registration Statement or any amendment thereto or pursuant to Rule 424 of the Rules) and when any amendment thereof
or supplement thereto was first filed with the Commission, such Preliminary Prospectus or Prospectus as amended or supplemented
complied in all material respects with the applicable provisions of the Securities Act and the Rules and did not or will not, contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading. If applicable, each Preliminary Prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T. Notwithstanding the foregoing, none of the representations
and warranties in this paragraph 2(a) shall apply to statements in, or omissions from, the Registration Statement, any Preliminary
Prospectus or the Prospectus made in reliance upon, and in conformity with, information herein or otherwise furnished in writing
by the Representative on behalf of the several Underwriters specifically for use in the Registration Statement, any Preliminary
Prospectus or the Prospectus. With respect to the preceding sentence, the Company acknowledges that the only information furnished
in writing by the Representative for use in the Registration Statement, any Preliminary Prospectus or the Prospectus are the statements
contained in the fourth paragraph and the last sentence of the fifth paragraph under the caption “Underwriting” in
the Prospectus (collectively, the “Underwriter Information”).
(b) As of the Applicable Time (as hereinafter
defined), neither (i) the price to the public and the number of Securities offered and sold, as indicated on the cover page of
the Prospectus and the Statutory Prospectus (as hereinafter defined), all considered together (collectively, the
“General Disclosure Package”), nor (ii) any individual Issuer Free Writing Prospectus when considered together
with the General Disclosure Package, included, includes or will include any untrue statement of a material fact or omitted, omits
or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty
shall not apply to statements in or omissions in the General Disclosure Package made in reliance upon and in conformity with the
Underwriter Information.
Each Issuer Free Writing Prospectus (as hereinafter
defined), including any electronic road show (including without limitation any “bona fide electronic road show” as
defined in Rule 433(h)(5) under the Securities Act) (each, a “Road Show”) (i) is identified in Schedule III hereto
and (ii) complied when issued, and complies, in all material respects with the requirements of the Securities Act and the Rules
and the Exchange Act and the rules and regulations of the Commission thereunder.
As used in this Section and elsewhere in this Agreement:
“Applicable Time” means
9:00 a.m. (Eastern time) on the date of this Underwriting Agreement.
“Statutory Prospectus”
as of any time means the Preliminary Prospectus relating to the Securities that is included in the Registration Statement immediately
prior to the Applicable Time, including any document incorporated by reference therein and any prospectus supplement deemed
to be a part thereof.
“Issuer Free Writing Prospectus”
means each “free writing prospectus” (as defined in Rule 405 of the Rules) prepared by or on behalf of the Company
or used or referred to by the Company in connection with the offering of the Securities, including, without limitation, each Road
Show.
(c) The Registration
Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any “free writing prospectus”,
as defined in Rule 405 under the Rules, has been issued by the Commission and no proceedings for that purpose have been instituted
or are threatened under the Securities Act. Any required filing of any Preliminary Prospectus and/or the Prospectus and any supplement
thereto pursuant to Rule 424(b) of the Rules has been or will be made in the manner and within the time period required by such
Rule 424(b). Any material required to be filed by the Company pursuant to Rule 433(d) of the Rules has been or will be made in
the manner and within the time period required by such Rules.
(d) The documents
incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Prospectus, at the time they became
effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
and any further documents so filed and incorporated by reference in the Registration Statement, any Preliminary Prospectus and
the Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain 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 are made, not
misleading.
(e) Each Issuer Free Writing Prospectus,
if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities
or until any earlier date that the Company notified or notifies the Representative as described in the next sentence, did not,
does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, including any document incorporated by reference therein and any prospectus supplement deemed to be
a part thereof that has not been superseded or modified, the Statutory Prospectus or the Prospectus.
If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration Statement, the Statutory Prospectus or the Prospectus
or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the
subsequent time, not misleading, the Company has promptly notified or will promptly notify the Representative and has promptly
amended or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
(f) The financial statements
of the Company (including all notes and schedules thereto) included or incorporated by reference in the General Disclosure Package,
the Registration Statement, the Statutory Prospectus and Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of
the Company and its consolidated subsidiaries for the periods specified; and such financial statements and related schedules and
notes thereto, and the unaudited financial information filed with the Commission as part of the Registration Statement, have been
prepared in conformity with generally accepted accounting principles, consistently applied throughout the periods involved. The
summary and selected financial data included in the Statutory Prospectus and Prospectus present fairly the information shown therein
as at the respective dates and for the respective periods specified and have been presented on a basis consistent with the consolidated
financial statements set forth in the Prospectus and other financial information.
(g) Peterson Sullivan
LLP (“Peterson”) whose reports are filed with the Commission as a part of the Registration Statement, the General Disclosure
Package and the Prospectus is and, during the periods covered by its reports, was an independent registered public accounting firm
as required by the Securities Act and the Rules.
(h) Marcum LLP (“Marcum”)
is an independent registered public accounting firm as required by the Securities Act and the Rules.
(i) The Company
and each of its subsidiaries, including each entity (corporation, partnership, joint venture, association or other business organization)
controlled directly or indirectly by the Company (each, a “subsidiary”), is duly organized, validly existing and in
good standing under the laws of their respective jurisdictions of incorporation or organization and each such entity has all requisite
power and authority to carry on its business as is currently being conducted as described in the General Disclosure Package, the
Statutory Prospectus and the Prospectus, and to own, lease and operate its properties. All of the issued shares of capital stock
of, or other ownership interests in, each subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable
and are owned, directly or indirectly, by the Company, free and clear of any lien, charge, mortgage, pledge, security interest,
claim, limitation on voting rights, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any
kind whatsoever. The Company and each of its subsidiaries is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the nature of the business conducted by it or location of the assets or properties owned,
leased or licensed by it requires such qualification, except for such jurisdictions where the failure to so qualify individually
or in the aggregate would not have a material adverse effect on the assets, properties, condition, financial or otherwise, or in
the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole (a
"Material Adverse Effect"); and to the Company's knowledge, no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.
(j) The Registration
Statement initially became effective within three years of the date hereof. If, immediately prior to the third anniversary of the
initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company will,
prior to that third anniversary file, if it has not already done so, a new “shelf” registration statement relating
to the Securities, in a form satisfactory to the Representative, will use its best efforts to cause such registration statement
to be declared effective within 180 days after that third anniversary, and will take all other action necessary or appropriate
to permit the public offering and sale of the Securities to continue as contemplated in the expired Registration Statement. References
herein to the registration statement relating to the Securities shall include such new “shelf” registration statement.
(k) The Company
and each of its subsidiaries has all requisite corporate power and authority, and all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity (collectively,
the “Permits”), to own, lease and license its assets and properties and conduct its business, all of which are valid
and in full force and effect, except where the lack of such Permits, individually or in the aggregate, would not have a Material
Adverse Effect. The Company and each of its subsidiaries has fulfilled and performed in all material respects all of its obligations
with respect to such Permits and no event has occurred that allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights of the Company thereunder. Except as may be required
under the Securities Act and state and foreign Blue Sky laws, no other Permits are required to enter into, deliver and perform
this Agreement and to issue and sell the Securities.
(l) (i) At
the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the Rules) for the Securities and (ii) at the date hereof,
the Company was not and is not an “ineligible issuer,” as defined in Rule 405 of the Rules, including (but not
limited to) the Company or any other subsidiary in the preceding three years not having been convicted of a felony or misdemeanor
or having been made the subject of a judicial or administrative decree or order as described in Rule 405 of the Rules.
(m) The Company
and its subsidiaries own or possess adequate rights to use all patents, patent applications, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, trademark registrations, service marks, service mark registrations, trade names, mask work
rights and other intellectual property necessary to carry on the business now operated by it or proposed to be operated by it as
described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus (collectively,
“Intellectual Property”), except where the lack of such ownership or rights to use would not have a Material Adverse
Effect. Except as disclosed in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus,
there is no litigation or other proceeding pending or, to the Company’s knowledge, threatened and no claims are presently
being asserted by any third party challenging or questioning the ownership, validity, or enforceability of the Company's right
to use or own any Intellectual Property or asserting that the use of the Company’s Intellectual Property by the Company or
the operation of the Company’s business infringes upon or misappropriates the Intellectual Property of any third party, and
the Company is unaware of any facts which would form a reasonable basis for any such claim. None of, and neither the Company nor
any subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property has expired, terminated or been
abandoned, or is essential for the Company’s business and is expected to expire or terminate or be abandoned within two (2)
years from the date of this Agreement. Except as disclosed in the Registration Statement, the General Disclosure Package, the Statutory
Prospectus and the Prospectus, the Company is not otherwise aware of any infringement of or conflict with asserted rights of others
with respect to any of the Company's Intellectual Property or the operation of the Company’s business. Except as disclosed
in the Statutory Prospectus and the Prospectus, the Company is not otherwise aware of any facts or circumstances which would render
any of the Company's Intellectual Property invalid or inadequate to protect the interests of the Company therein, or with respect
to the patent applications contained in the Intellectual Property, unpatentable. Except as disclosed in the Statutory Prospectus
and the Prospectus, or as would not, individually or in the aggregate have a Material Adverse Effect, to the Company’s knowledge,
(i) there is no infringement by third parties engaged in commercial activity of any Intellectual Property of the Company relating
to the Company’s business and (ii) there are no non-commercial activities being performed by any third parties which, upon
commercialization thereof, could reasonably be expected to infringe on the Intellectual Property of the Company. The Company and
its subsidiaries have taken all steps necessary to perfect its ownership of and interest in the Intellectual Property.
(n) The Company
and each of its subsidiaries has good and marketable title to all property owned by it, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, except such as do not materially affect the value of such property and do
not materially interfere with the use made or proposed to be made of such property by the Company and its subsidiaries. All property
held under lease by the Company and its subsidiaries is held by them under valid, existing and enforceable leases, free and clear
of all liens, encumbrances, claims, security interests and defects, except such as are not material and do not materially interfere
with the use made or proposed to be made of such property by the Company and its subsidiaries.
(o) Subsequent to
the respective dates as of which information is given in the Registration Statement, the General Disclosure Package, the Statutory
Prospectus and the Prospectus, (i) there has not been any event which could have a Material Adverse Effect; (ii) neither the Company
nor any of its subsidiaries has sustained any loss or interference with its assets, businesses or properties (whether owned or
leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental action, order or decree which would have a Material Adverse Effect; and (iii)
since the date of the latest balance sheet included in the Registration Statement and the Prospectus, neither the Company nor its
subsidiaries has (A) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except
such liabilities or obligations incurred in the ordinary course of business, (B) entered into any transaction not in the ordinary
course of business or (C) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased
or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its capital stock.
(p) There is no
document, contract or other agreement required to be described in the Registration Statement, the General Disclosure Package, the
Statutory Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed
as required by the Securities Act or Rules. Each description of a contract, document or other agreement in the Registration Statement,
the General Disclosure Package, the Statutory Prospectus or the Prospectus accurately reflects in all respects the terms of the
underlying contract, document or other agreement. Each contract, document or other agreement described in the Registration Statement,
the General Disclosure Package, the Statutory Prospectus or the Prospectus or listed in the exhibits to the Registration Statement
or incorporated by reference is in full force and effect and is valid and enforceable by and against the Company or its subsidiary,
as the case may be, in accordance with its terms. Neither the Company nor any of its subsidiaries, if a subsidiary is a party,
nor to the Company’s knowledge, any other party is in default in the observance or performance of any term or obligation
to be performed by it under any such agreement, and no event has occurred which with notice or lapse of time or both would constitute
such a default, in any such case which default or event, individually or in the aggregate, would have a Material Adverse Effect.
No default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by the Company or its subsidiary, if a subsidiary is a party thereto,
of any other agreement or instrument to which the Company or any of its subsidiaries is a party or by which Company or its properties
or business or a subsidiary or its properties or business may be bound or affected which default or event, individually or in the
aggregate, would have a Material Adverse Effect.
(q) The statistical
and market related data included in the Registration Statement, the General Disclosure Package, the Statutory Prospectus or the
Prospectus are based on or derived from sources that the Company believes to be reliable and accurate.
(r) Neither the
Company nor any subsidiary (i) is in violation of its certificate or articles of incorporation, by-laws, certificate of formation,
limited liability company agreement, partnership agreement or other organizational documents, (ii) is in default under, and no
event has occurred which, with notice or lapse of time, or both, would constitute a default under, or result in the creation or
imposition of any lien, charge, mortgage, pledge, security interest, claim, limitation on voting rights, equity, trust or other
encumbrance, preferential arrangement, defect or restriction of any kind whatsoever, upon, any property or assets of the Company
or any subsidiary pursuant to, any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is
in violation of any statute, law, rule, regulation, ordinance, directive, judgment, decree or order of any judicial, regulatory
or other legal or governmental agency or body, foreign or domestic, except (in the case of clauses (ii) and (iii) above) for violations
or defaults that could not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect.
(s) This Agreement
has been duly authorized, executed and delivered by the Company. The Warrants have been duly and validly authorized by the Company
and upon issuance will be duly and validly executed and delivered and will constitute legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, receivership, liquidation, fraudulent conveyance, moratorium or other similar laws affecting
the enforcement of creditors’ rights generally and by general equitable principles. All necessary corporate action has been
duly and validly taken by the Company to authorize the issuance and delivery of the Warrant Shares by the Company.
(t) Neither the
execution, delivery and performance of this Agreement and the Warrant Agreement (as defined herein) by the Company nor the consummation
of any of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale by the Company
of the Securities) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with
or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any
lien, charge or encumbrance upon any properties or assets of the Company or its subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which
either the Company or its subsidiaries or any of their properties or businesses is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation applicable to the Company or any of its subsidiaries or violate any provision of the
charter or by-laws of the Company or any of its subsidiaries, except for such consents or waivers which have already been obtained
and are in full force and effect.
(u) The
Company has authorized and outstanding capital stock as set forth under the caption “Capitalization” in the
Statutory Prospectus and the Prospectus. The certificates evidencing the Securities are in due and proper legal form and have
been duly authorized for issuance by the Company. All of the issued and outstanding shares of Common Stock have been duly and
validly issued and are fully paid and nonassessable. There are no statutory preemptive or other similar rights to subscribe
for or to purchase or acquire any shares of Common Stock of the Company or any of its subsidiaries or any such rights
pursuant to its Certificate of Incorporation or by-laws or any agreement or instrument to or by which the Company or any of
its subsidiaries is a party or bound. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly
issued, fully paid and nonassessable and none of them will be issued in violation of any preemptive or other similar right.
The Warrant Shares have been duly authorized and reserved for issuance pursuant to the terms of the Warrants, and when issued
by the Company upon valid exercise of the Warrants and payment of the exercise price, will be duly and validly issued, fully
paid and nonassesable. Except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus, there
is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement
to issue, any share of stock of the Company or any of its subsidiaries or any security convertible into, or exercisable or
exchangeable for, such stock. The exercise price of each employee option to acquire Common Stock (each, a “Company
Stock Option”) is no less than the fair market value of a share of Common Stock as determined on the date of grant of
such Company Stock Option. All grants of Company Stock Options were validly issued and properly approved by the board of
directors of the Company in material compliance with all applicable laws and the terms of the plans under which such Company
Stock Options were issued and were recorded on the Company Financial Statements in accordance with GAAP, and no such grants
involved any “back dating”, “forward dating,” “spring loading” or similar practices with
respect to the effective date of grant. The Common Stock and the Securities conform in all material respects to all
statements in relation thereto contained in the Registration Statement and the Statutory Prospectus and the Prospectus. All
outstanding shares of capital stock of each of the Company’s subsidiaries have been duly authorized and validly issued,
and are fully paid and nonassessable and are owned directly by the Company or by another wholly-owned subsidiary of the
Company free and clear of any security interests, liens, encumbrances, equities or claims, other than those described in the
Statutory Prospectus and the Prospectus. The Company has reserved and kept available for the exercise of the Warrants such
number of authorized but unissued shares as are sufficient to permit the exercise in full of the Warrants.
(v) No person or
entity has any right to require, or cause the Company to effect, registration of shares of Common Stock or other securities of
the Company because of the consummation of the transactions contemplated by this Agreement, except for persons and entities who
have expressly waived such right in writing or who have been given timely and proper written notice and have failed to exercise
such right within the time or times required under the terms and conditions of such right. Each director and executive officer
of the Company listed on Schedule II hereto has delivered to the Representative an enforceable written lock-up agreement in the
form attached to this Agreement as Exhibit A hereto (“Lock-Up Agreement”).
(w) There are no
legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries
could individually or in the aggregate have a Material Adverse Effect; and, to the knowledge of the Company, no such proceedings
are threatened or contemplated by governmental authorities or threatened by others.
(x) All necessary
corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement
and the issuance and sale of the Securities by the Company.
(y) Neither the
Company nor any of its subsidiaries is involved in any labor dispute nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a Material Adverse Effect. The Company is not aware of any existing or imminent labor disturbance
by the employees of any of its principal suppliers or contractors which would have a Material Adverse Effect. The Company is not
aware of any threatened or pending litigation between the Company or its subsidiaries and any of its executive officers which,
if adversely determined, could have a Material Adverse Effect and has no reason to believe that such officers will not remain in
the employment of the Company.
(z) No transaction
has occurred between or among the Company and any of its officers or directors, stockholders or any affiliate or affiliates of
any such officer or director or stockholder that is required to be described in and is not described in the Registration Statement,
the General Disclosure Package, the Statutory Prospectus and the Prospectus.
(aa) The Company
has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause
or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of
the price of the Common Stock or any security of the Company to facilitate the sale or resale of any of the Securities.
(bb) The Company
and each of its subsidiaries has filed all federal, state, local and foreign tax returns which are required to be filed through
the date hereof, which returns are true and correct in all material respects or has received timely extensions thereof, and has
paid all taxes shown on such returns and all assessments received by it to the extent that the same are material and have become
due. There are no tax audits or investigations pending, which if adversely determined would have a Material Adverse Effect; nor
are there any material proposed additional tax assessments against the Company or any of its subsidiaries.
(cc) The Company
has applied to have the Shares and the Warrant Shares authorized for listing on the NASDAQ Capital Market.
(dd) The Company
has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange
Act or the listing of the Shares and the Warrant Shares on the NASDAQ Capital Market, nor has the Company received any notification
that the Commission or the NASDAQ Capital Market is contemplating terminating such registration or listing.
(ee) The books,
records and accounts of the Company and its subsidiaries accurately and fairly reflect the transactions in, and dispositions of,
the assets of, and the results of operations of, the Company and its subsidiaries. The Company and each of its subsidiaries maintains
a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets
is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(ff) The Company
has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
which: (i) are designed to ensure that material information relating to the Company is made known to the Company’s principal
executive officer and its principal financial officer by others within the Company, particularly during the periods in which the
periodic reports required under the Exchange Act are required to be prepared; (ii) provide for the periodic evaluation of the effectiveness
of such disclosure controls and procedures at the end of the periods in which the periodic reports are required to be prepared;
and (iii) are effective in all material respects to perform the functions for which they were established.
(gg) Based on the
evaluation of its disclosure controls and procedures, the Company is not aware of (i) any material weakness or significant deficiency
in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize
and report financial data or any material weaknesses in internal controls; or (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal controls.
(hh) Except as described
in the Statutory Prospectus and the Prospectus and as preapproved in accordance with the requirements set forth in Section 10A
of the Exchange Act, neither Peterson nor Marcum has been engaged by the Company to perform any “prohibited activities”
(as defined in Section 10A of the Exchange Act).
(ii) Except as described
in the Statutory Prospectus and the Prospectus, there are no material off-balance sheet arrangements (as defined in Item 303 of
Regulation S-K) that have or are reasonably likely to have a material current or future effect on the Company’s financial
condition, revenues or expenses, changes in financial condition, results of operations, liquidity, capital expenditures or capital
resources.
(jj) The Company’s
board of directors has validly appointed an audit committee whose composition satisfies the requirements of the NASDAQ Stock Market
LLC (“NASDAQ”) and the board of directors and/or the audit committee has adopted a charter that satisfies the requirements
of the NASDAQ.
(kk) The Company
is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley
Act”), any related rules and regulations promulgated by the Commission and corporate governance requirements under applicable
NASDAQ regulations, and has no reason to believe that it will not comply with such provisions. There is and has been no failure
on the part of the Company or any of its directors or officers, in their capacities as such, to comply in all material respects
with any provision of the Sarbanes-Oxley Act, including, without limitation, Section 402 related to loans and Sections 302 and
906 related to certifications.
(ll) The Company
and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts
as are customary in the businesses in which they are engaged or propose to engage after giving effect to the transactions described
in the Statutory Prospectus and the Prospectus; all policies of insurance and fidelity or surety bonds insuring the Company or
any of its subsidiaries or the Company’s or its subsidiaries' respective businesses, assets, employees, officers and directors
are in full force and effect; the Company and each of its subsidiaries are in compliance with the terms of such policies and instruments
in all material respects; and neither the Company nor any subsidiary of the Company has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that is not materially greater than the current cost. Neither the Company
nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
(mm) Each approval,
consent, order, authorization, designation, declaration or filing of, by or with any regulatory, administrative or other governmental
body necessary in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions
herein contemplated required to be obtained or performed by the Company (except such additional steps as may be required by the
Financial Industry Regulatory Authority (“FINRA”), NASDAQ or may be necessary to qualify the Securities for public
offering by the Underwriters under the state securities or Blue Sky laws) has been obtained or made and is in full force and effect.
(nn) There are no
affiliations with FINRA among the Company’s officers, directors or, to the best of the knowledge of the Company, any five
percent or greater stockholder of the Company, except as set forth in the Registration Statement or otherwise disclosed in writing
to the Representative.
(oo) The Company
does not expect to be a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297(a) of the
United States Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder for the year
ending December 31, 2013, and has no plan or intention to conduct its business in a manner that would be reasonably expected
to result in the Company becoming a PFIC in the future under current laws and regulations.
(pp) (i) Each of
the Company and each of its subsidiaries is in compliance in all material respects with all rules, laws and regulations relating
to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (“Environmental
Laws”) which are applicable to its business; (ii) neither the Company nor its subsidiaries has received any notice from any
governmental authority or third party of an asserted claim under Environmental Laws; (iii) each of the Company and each of its
subsidiaries has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct
its business and is in compliance in all material respects with all terms and conditions of any such permit, license or approval;
(iv) to the Company’s knowledge, no facts currently exist that will require the Company or any of its subsidiaries to make
future material capital expenditures to comply with Environmental Laws; and (v) no property which is or has been owned, leased
or occupied by the Company or its subsidiaries has been designated as a Superfund site pursuant to the Comprehensive Environmental
Response, Compensation of Liability Act of 1980, as amended (42 U.S.C. Section 9601, et. seq.) (“CERCLA 1980”) or otherwise
designated as a contaminated site under applicable state or local law. Neither the Company nor any of its subsidiaries has been
named as a “potentially responsible party” under the CERCLA 1980.
(qq) In the ordinary
course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties
of the Company and its subsidiaries, in the course of which the Company identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material Adverse Effect.
(rr) The Company
is not and, after giving effect to the offering and sale of the Securities and the application of proceeds thereof as described
in the Statutory Prospectus and the Prospectus, will not be an “investment company” within the meaning of the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(ss) The Company
or any other person associated with or acting on behalf of the Company including, without limitation, any director, officer, agent
or employee of the Company or its subsidiaries, has not, directly or indirectly, while acting on behalf of the Company or its subsidiaries
(i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political
activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977,
as amended; or (iv) made any other unlawful payment.
(tt) The operations
of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending, or to the best knowledge of the Company, threatened.
(uu) Neither the
Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds
of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.
(vv) Except as described
in the Statutory Prospectus and the Prospectus, the Company has not sold or issued any shares of Common Stock during the six-month
period preceding the date of the Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or S of, the Securities
Act, other than shares issued pursuant to employee benefit plans, qualified stock options plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
(ww) The Company
has fulfilled its obligations, if any, in all material respects under the minimum funding standards of Section 302 of the U.S.
Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations and published interpretations thereunder
with respect to each “plan” as defined in Section 3(3) of ERISA and such regulations and published interpretations
in which its employees are eligible to participate and each such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published interpretations. No “Reportable Event” (as defined
in 12 ERISA) has occurred with respect to any “Pension Plan” (as defined in ERISA) for which the Company could have
any liability.
(xx) None of the
Company, its directors or its officers has distributed nor will distribute prior to the later of (i) the Firm Securities Closing
Date, or the Option Securities Closing Date, and (ii) completion of the distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than any Preliminary Prospectus, the Prospectus, the Registration
Statement and other materials, if any, permitted by the Securities Act and consistent with Section 3(d) below.
(yy) As to each
product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal Food, Drug and
Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled, tested,
distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”),
such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company
in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational
use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical
practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be
in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning
letter or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure,
registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of,
or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or
seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical
Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production
at any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction
with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company
or any of its Subsidiaries, and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties,
business and operations of the Company have been and are being conducted in all material respects in accordance with all applicable
laws, rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing,
sale, license or use in the United States of any product proposed to be developed, produced or marketed by the Company nor has
the FDA expressed any concern as to approving or clearing for marketing any product being developed or proposed to be developed
by the Company.
(zz) The Company
and the board of directors of the Company have taken all necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover
provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation
that is or could become applicable to the purchasers of the Securities as a result of such purchasers and the Company fulfilling
their obligations or exercising their rights under this Agreement, including without limitation as a result of the Company’s
issuance of the Securities and the purchasers’ ownership of the Securities.
3. Conditions
of the Underwriters' Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Securities are subject to each of the following terms and conditions:
(a) The Registration
Statement shall be effective and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a)
of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely
filed with the Commission in accordance with such rule.
(b) No order
preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any “free writing prospectus” (as
defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any
requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected
to rely upon Rules 430A or Rule 430B, information previously omitted from the effective Registration Statement pursuant to Rules
430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period
and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rules 430A
or 430B.
(c) The representations
and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true
and correct when made and on and as of each Closing Date as if made on such date, except for representations and warranties that
speak solely as of an earlier date, which shall be true and correct as of such earlier date. The Company shall have performed all
covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by
it at or before such Closing Date.
(d) The Representative
shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief
executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company to the
effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made
and are true and correct as of such Closing Date, except for representations and warranties that speak solely as of an earlier
or later date, which shall be true and correct as of such earlier or later date; (ii) the Company has performed all covenants and
agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus,
the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective
Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure
Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package,
included, any untrue statement of a material fact and did not 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, and (B) since the Effective
Date no event has occurred which should have been but was not set forth in a supplement or otherwise required an amendment to the
Registration Statement, the Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the
Securities Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise,
or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole.
(e) The Representative
shall have received: (i) simultaneously with the execution of this Agreement a signed letter from each of Peterson and Marcum addressed
to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative,
containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information contained in the Registration Statement and the General
Disclosure Package, and (ii) on each Closing Date, a signed letter from each of Peterson and Marcum addressed to the Representative
and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements
and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect
to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) The Representative
shall have received on each Closing Date from Wyrick Robbins Yates & Ponton LLP, counsel for the Company, an opinion, addressed
to the Representative and dated each Closing Date, as applicable, in substantially the form attached hereto as Exhibit B.
(g) The Representative
shall have received on each Closing Date from Christenson, O’Connor, Johnson, Kindness PLLC, intellectual property counsel
for the Company, an opinion, addressed to the Representative and dated each Closing Date, as applicable, in substantially the form
attached hereto as Exhibit C.
(h) The Representative
shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative,
an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may
reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for
enabling them to pass upon such matters.
(i) All proceedings
taken in connection with the sale of the Firm Securities and the Option Securities as herein contemplated shall be reasonably satisfactory
in orm and substance to the Representative and its counsel.
(j) The Representative
shall have received copies of the Lock-Up Agreements executed by each entity or person listed on Schedule II hereto.
(k) The Shares
and Warrant Shares shall have been approved for listing on the NASDAQ Capital Market.
(l) The
Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration
Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus, (i) there shall not have been any material
change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business)
of the Company, (ii) except as set forth in or contemplated by the Registration Statement, the Statutory Prospectus, the General
Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into
by the Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction
in the future earnings of the Company, (iii) no loss or damage (whether or not insured) to the property of the Company shall have
been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action,
suit or proceeding affecting the Company or any of its properties that is material to the Company or that affects or could reasonably
be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall
not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations,
business affairs or business prospects of the Company or its subsidiaries considered as a whole that makes it impractical or inadvisable
in the Representative’s reasonable judgment to proceed with the purchase or offering of the Securities as contemplated hereby.
(m) On
the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and agreements in connection with the offering of the Securities.
(n) The Company
shall have furnished or caused to be furnished to the Representative such further certificates or documents as the Representative
shall have reasonably requested.
4. Covenants and
other Agreements of the Company and the Underwriters.
(a) The Company
covenants and agrees as follows:
(i) The
Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement,
and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved
by the Representative and file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s
close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time
and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(ii) The
Company shall promptly advise the Representative in writing (A) when any post-effective amendment to the Registration Statement
shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the institution
or threatening of any proceeding for that purpose and (D) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any
document incorporated by reference in the Registration Statement or any Issuer Free Writing Prospectus unless the Company has furnished
the Representative a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which
the Representative reasonably objects. The Company shall use its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(iii) If,
at any time when a prospectus relating to the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules)
is required to be delivered under the Securities Act and the Rules, (A) any event occurs as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made not misleading, or (B) it shall be
necessary to amend or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare
and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement
which shall correct such statement or omission or an amendment which shall effect such compliance.
(iv) If
at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such
Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an
untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company
will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or omission.
(v) The
Company shall make generally available to its security holders and to the Representative as soon as practicable, but not later
than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective
Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earning statement (which need not
be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Rules.
(vi) The
Company shall furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter, without charge, copies of the
Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request.
If applicable, the copies of the Registration Statement, Preliminary Prospectus, any Issuer Free Writing Prospectus and Prospectus
and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(vii) The
Company shall cooperate with the Representative and its counsel in endeavoring to qualify the Securities for offer and sale in
connection with the offering under the laws of such jurisdictions as the Representative may designate and shall endeavor to maintain
such qualifications in effect so long as required for the distribution of the Securities; provided, however, that the Company shall
not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction or subject itself to taxation as doing business in any jurisdiction.
(viii) The
Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required
to be delivered under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required
to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange
Act and the regulations promulgated thereunder.
(ix) Without
the prior written consent of Oppenheimer & Co. Inc., for a period of 45 days after the date of this Agreement, the Company
and each of its individual directors and executive officers listed on Schedule II hereto shall not issue, sell or register with
the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities
of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company), except
for the issuance of the Shares pursuant to the Registration Statement, issuances of shares of Common Stock to Cognate BioServices,
Inc. for payment of accounts payable on a going forward basis as described in the Company’s Form 10-Q filed on November 15,
2013, issuances of shares of Common Stock to holders of
shares of redeemable Common Stock, and the issuance of awards for and shares of Common Stock
pursuant to the Company's existing stock option plan or bonus plan as described in the Registration Statement and the Prospectus.
In the event that during this period, (A) any shares are issued pursuant to the Company's existing stock option plan or bonus plan
that are exercisable during such 45 day period or (B) any registration is effected on Form S-8 or on any successor form relating
to shares that are exercisable during such 45 day period, the Company shall obtain the written agreement of such grantee or purchaser
or holder of such registered securities that, for a period of 45 days after the date of this Agreement, such person will not, without
the prior written consent of Oppenheimer & Co. Inc., offer for sale, sell, distribute, grant any option for the sale of, or
otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or
any securities convertible into, exercisable for, or exchangeable for any shares of Common Stock) owned by such person. Notwithstanding
the foregoing, (i) the Company represents and warrants that each such grantee or purchaser or holder of such registered securities
shall be subject to similar lockup restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights
and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable
period and (ii) if (x) during the last 17 days of the 45 day period described in this Section 4(a)(ix) the Company issues an earnings
release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of such 45 day period,
the Company announces that it will release earnings results during the 16 day period beginning on the last day of the 45 day period;
the restrictions imposed during this Section 4(a)(ix) shall continue to apply until the expiration of the 18-day period beginning
on the issuance of the earnings release or the occurrence of the material news or material event; provided, however, that this
sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities
Act and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act.
(x) On
or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the
NASDAQ Capital Market (including any required registration under the Exchange Act).
(xi) Prior
to the Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference
with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of
any of them, or the offering of the Securities without the prior written consent of the Representative, which shall not be unreasonably
delayed or withheld, unless in the judgment of the Company and its counsel, and after notification to the Representative, such
press release or communication is required by law.
(xii) The
Company will apply the net proceeds from the offering of the Securities in the manner set forth under "Use of Proceeds"
in the Prospectus.
(b) The Company
agrees to pay, or reimburse if paid by the Representative, whether or not the transactions contemplated hereby are consummated
or this Agreement is terminated, all costs and expenses incident to the public offering of the Securities and the performance of
the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, reproduction, filing
and distribution of the Registration Statement including all exhibits thereto, each Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus, all amendments and supplements thereto and any document incorporated by reference therein, and
the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Securities to
the Underwriters; (iii) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky
laws of the various jurisdictions referred to in Section 4(a)(vii), including the reasonable fees and expenses of counsel for the
Underwriters (subject to the limit described below in this paragraph) in connection with such registration and qualification and
the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including
costs of shipping and mailing) to the Representative and to the Underwriters of copies of each Preliminary Prospectus, the Prospectus
and all amendments or supplements to the Prospectus, any Issuer Free Writing Prospectus, and of the several documents required
by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Securities
by the Underwriters or by dealers to whom Securities may be sold; (v) the filing fees of FINRA in connection with its review of
the terms of the public offering and reasonable fees and expenses of counsel for the Underwriters in connection with such review
(subject to the limit described below in this paragraph); (vi) inclusion of the Shares and the Warrant Shares for listing on the
NASDAQ Capital Market; (vii) all transfer taxes, if any, with respect to the sale and delivery of the Securities by the Company
to the Underwriters; and (viii) all reasonable out of pocket costs and expenses incident to the offering and the performance of
the obligations of the Representative under this Agreement, including, without limitation, the fees and expenses of counsel to
the Underwriters; provided, however, that the fees and expenses of counsel to the Underwriters to be reimbursed by the Company
pursuant to this paragraph shall not exceed (without the prior consent of the Company which shall not be unreasonably withheld)
(A) $100,000 in the aggregate if the offering contemplated hereby is consummated or (B) $25,000 in the aggregate if the offering
contemplated hereby is not consummated. Subject to the provisions of Section 7, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance
of the obligations of the Underwriters under this Agreement not payable by the Company pursuant to the preceding sentence, including,
without limitation, the fees and expenses of counsel for the Underwriters.
(c) The Company
acknowledges and agrees that each of the Underwriters has acted and is acting solely in the capacity of a principal in an arm’s
length transaction between the Company, on the one hand, and the Underwriters, on the other hand, with respect to the offering
of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor,
agent or fiduciary to the Company or any other person. Additionally, the Company acknowledges and agrees that the Underwriters
have not and will not advise the Company or any other person as to any legal, tax, investment, accounting or regulatory matters
in any jurisdiction. The Company has consulted with its own advisors concerning such matters and shall be responsible for making
its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility
or liability to the Company or any other person with respect thereto, whether arising prior to or after the date hereof. Any review
by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions have been
and will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. The Company agrees
that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes
a fiduciary duty to the Company or any other person in connection with any such transaction or the process leading thereto.
(d) The Company represents and agrees
that, unless it obtains the prior consent of the Representative, and each Underwriter represents and agrees that, unless it obtains
the prior consent of the Company and the Representative, it has not made and will not make any offer relating to the Securities
that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. The Company has
complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission where required, legending and record keeping. The Company represents that is has satisfied
and agrees that it will satisfy the conditions set forth in Rule 433 of the Rules to avoid a requirement to file with the Commission
any Road Show. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer
free writing prospectus” as defined in Rule 433, and (b) contains only information that describes the final terms of the
Securities or their offering.
5. Indemnification.
(a) The Company agrees to indemnify and
hold harmless each Underwriter, its officers and employees and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), to which they, or any of them, may become subject
under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Preliminary Prospectus, the Registration Statement, the General Disclosure Package, the Statutory
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any “issuer-information” filed or required
to be filed pursuant to Rule 433(d) of the Rules, any amendment thereof or supplement thereto, or in any Blue Sky application or
other information or other documents executed by the Company filed in any state or other jurisdiction to qualify any or all of
the Securities under the securities laws thereof (any such application, document or information being hereinafter referred to as
a “Blue Sky Application”) or arise out of or are based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that such indemnity
shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) on account of any losses, claims,
damages or liabilities arising from the sale of the Securities to any person by such Underwriter if such untrue statement or omission
or alleged untrue statement or omission was made in such Preliminary Prospectus, the Registration Statement, the Prospectus, the
General Disclosure Package, the Statutory Prospectus, any Issuer Free Writing Prospectus or such amendment or supplement thereto,
or in any Blue Sky Application in reliance upon and in conformity with the Underwriter Information. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter,
severally and not jointly, agrees to indemnify and hold harmless the Company, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each director of the Company, and each
officer of the Company who signs the Registration Statement, against any losses, claims, damages or liabilities to which such party
may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Prospectus, the General Disclosure Package, the Statutory Prospectus, the Registration Statement or the Prospectus,
or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the Statutory Prospectus or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with the Underwriter Information; provided, however, that the obligation
of each Underwriter to indemnify the Company (including any controlling person, director or officer thereof) shall be limited to
the amount of the underwriting discount and commissions applicable to the Securities to be purchased by such Underwriter hereunder.
(c) Any party that
proposes to assert the right to be indemnified under this Section will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section, notify each such indemnifying party of the commencement of such action, suit or proceeding, enclosing a copy
of all papers served. No indemnification provided for in Section 5(a) or 5(b) shall be available to any party who shall fail to
give notice as provided in this Section 5(c) if the party to whom notice was not given was unaware of the action, suit or proceeding
to which such notice would have related and was prejudiced by the failure to give such notice but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not relieve it from any liability that it may have to any indemnified
party for contribution or otherwise than under this Section. In case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof and the approval by the indemnified party of such counsel,
the indemnifying party shall not be liable to such indemnified party for any legal or other expenses, except as provided below
and except for the reasonable costs of investigation subsequently incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (ii) the indemnified party shall have been advised by counsel that there may
be one or more legal defenses available to it which are different from or in addition to those available to the indemnifying party
(in which case the indemnifying parties shall not have the right to direct the defense of such action on behalf of the indemnified
party) or (iii) the indemnifying parties shall not have employed counsel to assume the defense of such action within a reasonable
time after notice of the commencement thereof, in each of which cases the fees and expenses of counsel shall be at the expense
of the indemnifying parties. An indemnifying party shall not be liable for any settlement of any action, suit, and proceeding or
claim effected without its written consent, which consent shall not be unreasonably withheld or delayed.
6. Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in Section 5(a)
or 5(b) is due in accordance with its terms but for any reason is unavailable to or insufficient to hold harmless an indemnified
party in respect to any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate losses, liabilities, claims, damages and expenses (including any investigation, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by any person entitled hereunder to contribution from any person who may be liable
for contribution) incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities pursuant
to this Agreement or, if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the Company on the one hand and the Underwriters on
the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses,
as well as any other relevant equitable considerations. The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred
to above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, no Underwriter (except as may be provided in the Agreement Among Underwriters)
shall be required to contribute any amount in excess of the underwriting discounts and commissions applicable
to the Securities purchased by such Underwriter. 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, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, 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 Section 15 of the Securities Act or Section 20 of the Exchange Act, shall have the same rights to contribution
as the Company. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this
Section 6, notify such party or parties from whom contribution may be sought, but the omission so to notify such party or parties
from whom contribution may be sought shall not relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this Section 6. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without its written consent. The Underwriters’ obligations to contribute
pursuant to this Section 6 are several in proportion to their respective underwriting commitments and not joint.
7. Termination.
(a) This Agreement
may be terminated with respect to the Securities to be purchased on a Closing Date by the Representative by notifying the Company
at any time at or before a Closing Date in the absolute discretion of the Representative if: (i) in the judgment of the Representative,
there has occurred any material adverse change in the securities markets or any event, act or occurrence that has materially disrupted,
or in the opinion of the Representative, will in the future materially disrupt, the securities markets or there shall be such a
material adverse change in general financial, political or economic conditions or the effect of international conditions on the
financial markets in the United States is such as to make it, in the judgment of the Representative, inadvisable or impracticable
to market the Securities or enforce contracts for the sale of the Securities; (ii) there has occurred any outbreak or material
escalation of hostilities or acts of terrorism or other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Representative, inadvisable or impracticable to market the Securities
or enforce contracts for the sale of the Securities; (iii) trading in the Common Stock or any securities of the Company has been
suspended or materially limited by the Commission or trading generally on the New York Stock Exchange, Inc. or the NASDAQ has been
suspended or materially limited, or minimum or maximum ranges for prices for securities shall have been fixed, or maximum ranges
for prices for securities have been required, by any of said exchanges or by such system or by order of the Commission, FINRA,
or any other governmental or regulatory authority; or (iv) a banking moratorium has been declared by any state or federal authority;
or (v) in the judgment of the Representative, there has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse change in the assets, properties, condition, financial
or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered
as a whole, whether or not arising in the ordinary course of business.
(b) If this Agreement
is terminated pursuant to any of its provisions, the Company shall not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (y) if this Agreement is terminated by the Representative or the Underwriters
because of any failure, refusal or inability on the part of the Company to comply with the terms or to fulfill any of the conditions
of this Agreement, the Company will reimburse the Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the proposed purchase and sale of the Securities or in contemplation
of performing their obligations hereunder and (z) no Underwriter who shall have failed or refused to purchase the Securities agreed
to be purchased by it under this Agreement, without some reason sufficient hereunder to reasonably justify cancellation or termination
of its obligations under this Agreement, shall be relieved of liability to the Company, or to the other Underwriters for damages
occasioned by its failure or refusal.
8. Substitution
of Underwriters. If any Underwriter shall default in its obligation to purchase on any Closing Date the Securities agreed to
be purchased hereunder on such Closing Date, the Representative shall have the right, within 36 hours thereafter, to make arrangements
for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase such Securities on the terms contained
herein. If, however, the Representative shall not have completed such arrangements within such 36-hour period, then the Company
shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to
the Underwriters to purchase such Securities on such terms. If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number
of Securities which remains unpurchased on such Closing Date does not exceed 10% of the aggregate number of all the Securities
that all the Underwriters are obligated to purchase on such date, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the number of Securities which such Underwriter agreed to purchase hereunder at such date and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Securities which such Underwriter
agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. In any such case, either
the Representative or the Company shall have the right to postpone the applicable Closing Date for a period of not more than seven
days in order to effect any necessary changes and arrangements (including any necessary amendments or supplements to the Registration
Statement or Prospectus or any other documents), and the Company agrees to file promptly any amendments to the Registration Statement
or the Prospectus which in the opinion of the Company and the Underwriters and their counsel may thereby be made necessary.
If, after giving effect
to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representative and the
Company as provided above, the aggregate number of such Securities which remains unpurchased exceeds 10% of the aggregate number
of all the Securities to be purchased at such date, then this Agreement, or, with respect to a Closing Date which occurs after
the Firm Securities Closing Date, the obligations of the Underwriters to purchase, and of the Company, as the case may be, to sell
the Option Securities to be purchased and sold on such date, shall terminate, without liability on the part of any non-defaulting
Underwriter to the Company, and without liability on the part of the Company, except as provided in Sections 4(b), 5, 6 and 7.
The provisions of this Section 8 shall not in any way affect the liability of any defaulting Underwriter to the Company or the
nondefaulting Underwriters arising out of such default. The term “Underwriter” as used in this Agreement shall include
any person substituted under this Section 8 with like effect as if such person had originally been a party to this Agreement with
respect to such Securities.
9. Miscellaneous.
The respective agreements, representations, warranties, indemnities and other statements of the Company and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or the Company
or any of their respective officers, directors or controlling persons referred to in Sections 5 and 6 hereof, and shall survive
delivery of and payment for the Securities. In addition, the provisions of Sections 4(b), 5, 6 and 7 shall survive the termination
or cancellation of this Agreement.
This Agreement has been
and is made for the benefit of the Underwriters, the Company and their respective successors and assigns, and, to the extent expressed
herein, for the benefit of persons controlling any of the Underwriters, or the Company, and directors and officers of the Company,
and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement.
The term “successors and assigns” shall not include any purchaser of Securities from any Underwriter merely because
of such purchase.
All notices and communications
hereunder shall be effective upon delivery and shall be in writing and mailed or delivered or by telephone or telegraph if subsequently
confirmed in writing, (a) if to the Representative, c/o Oppenheimer & Co. Inc., 85 Broad Street, New York, New York 10004 Attention:
Equity Capital Markets, with a copy to Oppenheimer & Co. Inc., 85 Broad Street, New York, New York 10004, Attention: General
Counsel, and to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 666 Third Avenue, New York, New York 10017, Attention: Ivan
K. Blumenthal, Esq., Facsimile: 212-983-3115, and (b) if to the Company, to its agent for service as such agent's address appears
on the cover page of the Registration Statement with a copy to Wyrick Robbins Yates & Ponton LLP, 4101 Lake Boone Trail, Suite
300, Raleigh, North Carolina 27607, Attention: Alexander M. Donaldson, Esq., Facsimile: 919-781-4865.
This Agreement shall
be governed by and construed in accordance with the laws of the State of New York.
This Agreement may be
signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
[Signature page follows]
Please confirm that the
foregoing correctly sets forth the agreement among us.
| |
Very truly yours, |
| |
|
| |
NORTHWEST BIOTHERAPEUTICS, INC. |
| |
|
| |
|
| |
By: /s/ Linda F. Powers |
| |
Name: Linda F. Powers |
| |
Title: Chief Executive Officer |
| |
|
| Confirmed: |
|
| |
|
| OPPENHEIMER & CO. INC. |
|
| |
|
| |
|
| By: /s/ Douglas Cameron |
|
| Name: Douglas Cameron |
|
| Title: Head of Equity Capital Markets |
|
| |
|
| |
|
| Acting severally on behalf of itself |
|
| and as representative of the several |
|
| Underwriters named in Schedule I annexed |
|
| hereto. |
|
| |
|
| By: OPPENHEIMER & CO. INC. |
|
| |
|
| |
|
| By: /s/ Douglas Cameron |
|
| Name: Douglas Cameron |
|
| Title: Head of Equity Capital Markets |
|
SCHEDULE I
| Name | |
Number of
Firm Shares to
be Purchased | | |
Number of
Firm
Warrants to be
Purchased | |
| | |
| | |
| |
| Oppenheimer & Co. Inc. | |
| 4,895,834 | | |
| 2,447,917 | |
| | |
| | | |
| | |
| Total | |
| 4,895,834 | | |
| 2,447,917 | |
SCHEDULE II
Lock-Up Signatories
Linda Powers
Alton Boynton
Anthony Maida
Leslie Goldman
Marnix Bosch
Robert A. Farmer
Dr. Navid Malix
Jerry Jasinowski
SCHEDULE III
Issuer Free Writing Prospectuses
None.
