Exhibit 1.1
EXECUTION VERSION
80,952,381 Shares
Conformis, Inc.
Common Stock
UNDERWRITING AGREEMENT
February 12, 2021
Oppenheimer & Co. Inc.
as Representative of the several
Underwriters named in Schedule I hereto
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
Conformis, 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 80,952,381 shares (the “Shares”)
of the Company’s common stock, $0.00001 par value per share (the “Common Stock”). The respective amounts
of the Shares to be purchased by each of the several Underwriters are set forth opposite their names on Schedule I hereto.
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 registration statement on Form S-3 (No. 333-237351) (the “Registration Statement”),
including a base prospectus filed as part of such Registration Statement (the “Base Prospectus”) relating to
common stock, preferred stock, debt securities, warrants, 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 (as defined below) (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 defined 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 Effective Date (as defined below) pursuant to 430B of the Rules.
If the Company has
filed an abbreviated registration statement to register additional Shares 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 Shares. The term “Prospectus” means the Base Prospectus,
any Preliminary Prospectus and any amendments or further supplements to such prospectus, 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 Shares 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, and the rules and regulations of the Commission thereunder,
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 Shares, as set forth in and pursuant to the Statutory Prospectus
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, if applicable, 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 Shares. 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 $0.9881 per share (the “Initial Price”), the number
of Shares set forth opposite the name of such Underwriter under the column “Number of Shares to be Purchased” on Schedule
I to this Agreement, subject to adjustment in accordance with Section 8 hereof.
(b) Payment
of the purchase price for, and delivery of certificates for, the Shares shall be made through the facilities of the
Depositary Trust Company (“DTC”) 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 second 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 “Closing
Date”).
(c)
Payment for the Shares 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 Shares for the respective accounts of the Underwriters.
(d)
The 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 Closing Date and shall be delivered by or on behalf of the Company to the Representative through
the facilities of the DTC for the account of the Underwriters.
2.
Representations and Warranties of the Company. The Company represents and warrants to each Underwriter as of the
date hereof and as of the Closing Date, as follows:
(a) The
Company was at the time of the filing of the Registration Statement eligible under the
Securities Act to use Form S-3. As of the date of this Agreement, the Company is eligible under the Securities Act to
use Form S-3, including the transaction requirements set forth in General Instruction 1.B.1 of such form. 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 Shares, and the Company has prepared and used a Preliminary Prospectus in
connection with the offer and sale of the Shares. 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, in the light of the circumstances under which they were
made, 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 the Electronic Data Gathering, Analysis and Retrieval system (“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 is the statements contained in the fourth and tenth paragraphs under the caption “Underwriting” in the
Prospectus (collectively, the “Underwriting Information”).
(b)
As of the Applicable Time (as hereinafter defined), neither (i) the price to the public and the number of shares offered
and sold, as indicated on the cover page of the Prospectus and the Statutory Prospectus, 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
Underwriting 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 2 and elsewhere in this Agreement:
“Applicable Time” means 7:30 a.m.
(Eastern time) on the date of this Underwriting Agreement.
“Statutory Prospectus” as of
any time means the Preliminary Prospectus relating to the Shares 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 Shares, 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, to the Company’s knowledge, have been 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) or Rule 163(b)(2) 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, as of its issue date and at all subsequent times through the completion of the public
offer and sale of the Shares 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 in 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)
Grant Thornton LLP (the “Auditor”), whose reports are filed with the Commission as a part of the Registration
Statement, are and, during the periods covered by their reports, were independent public accountants as required by the Securities
Act and the Rules.
(h)
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 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.
(i)
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 Shares 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 Shares, 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 Shares to continue as contemplated in the expired Registration Statement. References
herein to the registration statement relating to the Shares shall include such new shelf registration statement.
(j) The
Company and each of its subsidiaries possess all licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective
businesses as described in the Statutory Prospectus and the Prospectus, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in the Statutory
Prospectus and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course. Except as described in the Statutory
Prospectus and the Prospectus, as applicable, the Company and its subsidiaries (i) are, and at all times have been, in
compliance with all statutes, rules and regulations applicable to the ownership, testing, development, manufacture,
packaging, processing, use, distribution, storage, import, export or disposal of any product manufactured or distributed by
the Company or its subsidiaries (“Applicable Laws”), except where such noncompliance would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect; and (ii) have not received any U.S. Food and Drug
Administration (“FDA”) Form 483, written notice of adverse finding, warning letter, untitled letter or other
correspondence or written notice from any court or arbitrator or governmental or regulatory authority alleging or asserting
non-compliance with (x) any Applicable Laws or (y) any licenses, exemptions, certificates, approvals, clearances,
authorizations, permits and supplements or amendments thereto required by any such Applicable Laws, which remains unresolved
as of the date hereof.
(k)
(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) of the Shares and (ii) as of 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.
(l) Except
for specific matters the Company is aware of that are accurately described in the Statutory Prospectus and the Prospectus,
the Company and its subsidiaries own or possess, or can promptly acquire on reasonable terms, adequate rights to use all
inventions, patents, trademarks, service marks, trade names, domain names, copyrights, licenses, technology, know-how, trade
secrets and other intellectual property and proprietary or confidential information, systems or procedures (including all
goodwill associated with, and all registrations and applications for registration of, the foregoing) (collectively,
“Intellectual Property”) necessary for or material to the conduct of their respective businesses as
currently conducted and as proposed in the Statutory Prospectus and the Prospectus to be conducted by them, and, to the
knowledge of the Company, the conduct of the respective businesses of the Company and its subsidiaries has not infringed,
misappropriated or otherwise violated any Intellectual Property of others in any material respect. Except as disclosed in the
Statutory Prospectus and the Prospectus or as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or
claim by a third party (i) challenging the Company’s or any subsidiary of the Company’s rights in or to, or
alleging the violation of any of the terms of, any of their Intellectual Property; (ii) alleging that the Company or any of
its subsidiaries has infringed, misappropriated or otherwise violated or conflicted with any Intellectual Property of any
third party; or (iii) challenging the validity, scope or enforceability of any Intellectual Property owned by or exclusively
licensed to the Company or any of its subsidiaries, and in the case of each of (i), (ii) and (iii), the Company is unaware of
any facts which would form a reasonable basis for any such action, suit, proceeding or claim. Except as described in the
Statutory Prospectus and the Prospectus, all Intellectual Property owned by the Company or its subsidiaries is, to the
knowledge of the Company, valid and enforceable, owned solely by the Company or its subsidiaries and, except as would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, owned free and clear of all
liens, encumbrances, defects and other restrictions. The Company is not aware of any specific facts or combination of facts
that reasonably would support a finding that any of the material issued or granted patents owned by or licensed to the
Company or any of its subsidiaries is invalid or unenforceable and, to the knowledge of the Company, all such issued or
granted patents are valid and enforceable, except, in each case, as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The Company and its subsidiaries have at all times taken reasonable steps in
accordance with normal industry practice to maintain the confidentiality of all Intellectual Property, the value of which to
the Company or any of its subsidiaries is contingent upon maintaining the confidentiality thereof, and, to the knowledge of
the Company, no such Intellectual Property has been disclosed other than to employees, representatives, independent
contractors, collaborators, licensors, licensees, agents and advisors of the Company or its subsidiaries, all of whom are
bound by written obligations to maintain the confidentiality thereof. Except as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, all founders, current and former employees, contractors,
consultants and other parties involved in the development of Intellectual Property for the Company or any subsidiary of the
Company have signed confidentiality and invention assignment agreements with the Company or such subsidiary of the Company,
as applicable, pursuant to which the Company or subsidiary of the Company, as applicable, either (x) has obtained ownership
of and is the exclusive owner of such Intellectual Property, or (y) has obtained a valid right to exploit such Intellectual
Property, sufficient for the conduct of its business as currently conducted and as proposed in the Statutory Prospectus and
the Prospectus to be conducted.
(m)
The Company and each of its subsidiaries has good and marketable title in fee simple to all real property, and good and
marketable title to all other 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.
(n) Subsequent
to the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus and the
Prospectus, (i) there has not been any event which could reasonably be expected to 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 could
reasonably be expected to 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 (other
than securities issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans
or pursuant to outstanding options, rights or warrants) 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.
(o)
There is no document, contract or other agreement required to be described in the Registration Statement, 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
Statutory Prospectus or the Prospectus accurately reflects in all material respects the terms of the underlying contract, document
or other agreement. Each contract, document or other agreement described in the Registration Statement, 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, could reasonably be expected to 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, could reasonably
be expected to have a Material Adverse Effect.
(p)
The statistical and market related data included in the Registration Statement, the Statutory Prospectus or the Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate.
(q)
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.
(r)
This Agreement has been duly authorized, executed and delivered by the Company;
(s)
Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will (i) 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 (ii) 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,
except in the case of clause (i), such as could not reasonably be expected to result in a Material Adverse Effect.
(t)
The Company has authorized and outstanding capital stock as set forth in the Statutory Prospectus and the Prospectus. The
Shares 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. 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 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 Shares 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.
(u) The
Company and its subsidiaries have been and are in compliance with all applicable laws, rules and regulations, except where
failure to be so in compliance would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect. The Company and its subsidiaries maintain internal policies and procedures designed to ensure that they shall remain
in material compliance with all applicable laws, rules and regulations applicable to the Company, and such internal policies
and procedures are reviewed periodically.
(v)
No holder of any security of the Company has any right, which has not been waived, to have any security owned by such holder
included in the Registration Statement or to demand registration of any security owned by such holder for a period of 90 days after
the date of this Agreement. Each director and executive officer of the Company listed on Schedule II hereto has delivered to the
Representative his 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, be reasonably expected to 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 Shares 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 could reasonably be expected to 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 could reasonably
be expected to 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 reasonably be expected to 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, shareholders or any affiliate
or affiliates of any such officer or director or shareholder that is required to be described in and is not described in the Registration
Statement, 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 of any “reference security” (as defined in Rule 100 of Regulation
M under the Exchange Act (“Regulation M”)) with respect to the Shares, whether to facilitate the sale or resale
of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(bb) There
are no business relationships or related-party transactions involving the Company or any of its subsidiaries or any other
person required to be described in the Registration Statement, the Statutory Prospectus or the Prospectus that have not been
described as required.
(cc)
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, could reasonably be expected
to have a Material Adverse Effect; nor are there any material proposed additional tax assessments against the Company or any of
its subsidiaries.
(dd)
As of the date of each Closing Date, the Shares will be approved for listing on The Nasdaq Capital Market (“Nasdaq”)
upon official notice of issuance.
(ee)
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 quotation of the Common Stock on Nasdaq, nor has the Company received any notification that
the Commission or Nasdaq is contemplating terminating such registration or quotation.
(ff)
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.
(gg)
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, and the rules and regulations of the Commission thereunder, 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.
(hh) Based
on the evaluation of its disclosure controls and procedures, the Company is not aware of (i) except as described in the
Registration Statement, the Statutory Prospectus and the Prospectus, 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.
(ii)
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, the Auditor has not been engaged by the Company to perform any “prohibited
activities” (as defined in Section 10A of the Exchange Act).
(jj)
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.
(kk)
The Company’s board of directors has validly appointed an audit committee whose composition satisfies the requirements
of Rule 5605 of Nasdaq and the board of directors and/or the audit committee has adopted a charter that satisfies the requirements
of Rule 5605 of Nasdaq. The audit committee has reviewed the adequacy of its charter within the past twelve months.
(ll)
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 with any provision of the Sarbanes-Oxley Act, including, without limitation, Section 402 related to loans and Sections
302 and 906 related to certifications.
(mm)
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 a policy of insurance which it has
sought or for which it has applied.
(nn)
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”) or may be necessary to qualify the Shares
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.
(oo)
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.
(pp)
(i) Each of the Company and each of its subsidiaries is in compliance in all material respects with all rules, laws and
regulation relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment
(“Environmental Law”) 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 Shares 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)
Neither the Company, nor, to the Company’s knowledge, 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, 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 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 pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from the Company
any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(ww)
No forward-looking statement (within the meaning of Section 27A of the Act and Section
21E of the Exchange Act) contained in any of the Statutory Prospectus or the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(xx)
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.
(yy)
The Company has fulfilled its obligations, if any, 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.
(zz) None
of the Company, its directors or its officers has distributed nor will distribute prior to the later of (i) the Closing Date
and (ii) completion of the distribution of the Shares, any offering material in connection with the offering and sale of the
Shares 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.
(aaa)
Except as described in the Statutory Prospectus and the Prospectus, the clinical studies
conducted by or, to the knowledge of the Company, on behalf of or sponsored by the Company or its subsidiaries, or in which the
Company or its subsidiaries have participated, that are described in the Statutory Prospectus and the Prospectus, or the results
of which are referred to in the Statutory Prospectus and the Prospectus, as applicable, were, and if still pending are, being conducted
in all material respects in accordance with standard medical and scientific research standards and procedures for products or product
candidates comparable to those being developed by the Company and all applicable statutes and all applicable rules and regulations
of the FDA and comparable regulatory agencies outside of the United States to which they are subject, including the European Medicines
Agency (collectively, the “Regulatory Authorities”) and current Good Clinical Practices and Good Laboratory
Practices; (ii) the descriptions in the Statutory Prospectus and the Prospectus of the results of such studies are accurate descriptions
in all material respects and fairly present the data derived therefrom in all material respects; (iii) the Company has no knowledge
of any other clinical studies not described in the Statutory Prospectus and the Prospectus, the results of which are inconsistent
with or call into question the results described or referred to in the Statutory Prospectus and the Prospectus; (iv) the Company
and its subsidiaries have operated at all times and are currently in compliance in all material respects with all applicable statutes,
rules and regulations of the Regulatory Authorities; and (v) neither the Company nor any of its subsidiaries have received any
written notices, correspondence or other communications from the Regulatory Authorities or any other governmental agency requiring
or threatening the termination, material modification or suspension of any clinical studies that are described in the Statutory
Prospectus and the Prospectus or the results of which are referred to in the Statutory Prospectus and the Prospectus, other than
ordinary course communications with respect to modifications in connection with the design and implementation of such studies,
and, to the Company’s knowledge, there are no reasonable grounds for the same.
(bbb)
The Company has not failed to file with the Regulatory Authorities any required filing,
declaration, listing, registration, report or submission with respect to the Company’s product candidates that are described
or referred to in the Statutory Prospectus and the Prospectus; all such filings, declarations, listings, registrations, reports
or submissions were in material compliance with applicable laws when filed; and no deficiencies regarding compliance with applicable
law have been asserted by any applicable regulatory authority with respect to any such filings, declarations, listings, registrations,
reports or submissions.
(ccc) None
of the Company, its subsidiaries, nor, to Company’s knowledge, any director, officer, employee or agent of the Company
is in violation of any Health Care Laws (as defined below), except where the failure to be in compliance would not,
individually or in the aggregate, reasonably be expected have a Material Adverse Effect. For purposes of this Agreement and
any Terms Agreement, “Health Care Laws” means: (i) the United States Federal Food, Drug, and Cosmetic Act
(21 U.S.C. Section 301 et seq.) and the regulations promulgated thereunder; (ii) all applicable federal, state, local
and foreign health-care related fraud and abuse laws, including, without limitation, the U.S. Anti-Kickback Statute (42
U.S.C. Section 1320a-7b(b)), the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), Section 1320a-7 of Title 42 of
the United States Code and the regulations promulgated pursuant to such statutes; (iii) any criminal laws relating to
health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health care fraud criminal
provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); (iv) the
Administrative Simplification provisions of HIPAA (42 U.S.C. Section 1320d et seq.), the Health Information Technology for
Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.), and the regulations promulgated thereunder including the
Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”), the Security
Standards, and any state or non-U.S. counterpart thereof, and any other law or regulation the purpose of which is to protect
the privacy of individuals or prescribers; (v) the U.S. Controlled Substances Act (21 U.S.C. Section 801 et seq.);
(vi) the U.S. Prescription Drug Marketing Act of 1987, as amended, and the rules and regulations promulgated thereunder;
(viii) the Clinical Laboratory Improvement Act; and (ix) quality, safety and accreditation requirements under applicable
federal, state, local or foreign laws or regulatory bodies; and (x) any and all other applicable health care laws and
regulations related to clinical research, testing, and medical product development activities, in any jurisdiction that the
Company is subject to. Additionally, none of the Company, its subsidiaries, any director, officer, employee or agent of the
Company has been excluded, suspended or debarred from participation in any federal health care program. To the
Company’s knowledge, no director, officer, employee or agent of the Company has been disqualified by FDA as a clinical
investigator. Neither the Company, its subsidiaries, nor, to the Company’s knowledge, any director, officer, employee
or agent of the Company is subject to or has been threatened in writing with a governmental inquiry, investigation,
proceeding, or other similar action that would reasonably be expected to result in debarment, suspension, or
exclusion.
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 Shares are subject to each of the following terms
and conditions:
(a)
Notification that the Registration Statement has become 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 Rule 430B, Rule 430B information previously omitted from the effective Registration Statement pursuant to Rule 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 Rule 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. 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 them 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 or chief operating officer and the chief financial officer or chief accounting officer of the Company,
in their capacity as such officers, 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; (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 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) on the date hereof, a signed letter from the Auditor 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 the Auditor 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 Hogan Lovells US LLP, counsel for the Company, an
opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, in form and substance
reasonably satisfactory to the Representative.
(g) Sunstein
Kann Murphy & Timbers LLP shall have furnished to the Underwriters such counsel’s
written opinion, as intellectual property counsel to the Company, addressed to the Representative and dated as of the Closing
Date, in form and substance reasonably satisfactory to the Representative.
(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, in
form and substance reasonably satisfactory to the Representative.
(i) All
proceedings taken in connection with the sale of the Shares as herein contemplated shall be reasonably satisfactory in form and
substance to the Representative, and their 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
Company shall have submitted a Notification: Listing of Additional Shares with Nasdaq and received no objection thereto.
(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 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 judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(m) On
the Closing Date, the Representative shall have received a letter from FINRA issued in connection with the Base Prospectus and
FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements,
or other arrangements of the transactions, contemplated hereby which has not been resolved to the reasonable satisfaction of the
Representative on or before the Closing Date.
(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 Shares 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 object. 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 Shares (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 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 if it shall be necessary
to amend or supplement the Prospectus to comply with the Securities Act or the Rules or the Exchange Act and the rules and regulations
of the Commission thereunder, 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 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 a copy 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.
(vi) The
Company shall cooperate with the Representative and their counsel in endeavoring to qualify the Shares for offer and sale in connection
with the offering under the laws of such jurisdictions as the Representative may designate and shall maintain such qualifications
in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in
connection therewith, as a condition thereof, to qualify as a foreign corporation or dealer in securities in any jurisdiction,
or to execute a general consent to service of process in any jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(vii) 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 and the rules and regulations of the Commission thereunder,
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.
(viii) Without
the prior written consent of the Representative, for a period of 90 days after the date of this Agreement (“Lock-Up
Period”), the Company 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 (i) the
issuance of the Shares pursuant to the Registration Statement, (ii) the issuance of shares pursuant to the
Company’s existing equity incentive plan, employee stock option plan or bonus plan as described in the Registration
Statement and the Prospectus, (iii) the issuance of Common Stock pursuant to the conversion of securities or the
exercise of warrants, which securities or warrants are outstanding on the date hereof and described in the Registration
Statement and the Prospectus; (iv) adoption of a new equity incentive plan, and filing a registration statement on Form
S-8 under the Securities Act to register the offer and sale of securities to be issued pursuant to such new equity incentive
plan, and issue securities pursuant to such new equity incentive plan (including, without limitation, the issuance of shares
of Common Stock upon the exercise of options or other securities issued pursuant to such new equity incentive plan), provided
that (1) such new equity incentive plan satisfies the transaction requirements of General Instruction A.1
of Form S-8 under the Securities Act and (2) this clause, or (iv) shall not be available unless each
recipient of shares of Common Stock, or securities exchangeable or exercisable for or convertible into Common Stock, pursuant
to such new equity incentive plan shall be contractually prohibited from selling, offering, disposing of or otherwise
transferring any such shares or securities during the remainder of the Lock-Up Period.
(ix) On
or before completion of this offering, the Company shall make all filings required under applicable securities laws and by Nasdaq
(including any required registration under the Exchange Act).
(x) 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 Shares without the prior written consent of the Representative 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.
(xi) The
Company will apply the net proceeds from the offering of the Shares 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 Shares 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 the Shares to the Underwriters; (iii) 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 4 to
be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold; (iv) inclusion of the Shares for quotation on Nasdaq; (v) all transfer
taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters; and (vi) 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 reasonable fees and expenses of counsel to the
Underwriters) not to exceed $60,000 in the aggregate (without the Company’s prior approval which shall not be
unreasonably withheld, conditioned or delayed), excluding (x) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 4(a)(vi), including
the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification
and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda and (y) the
filing fees of FINRA in connection with its review of the terms of the public offering and reasonable fees and disbursements
of counsel for the Underwriters in connection with such review. 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 disbursements 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 Shares 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 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 Shares 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 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.
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 any preliminary prospectus, the Registration Statement, 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 Shares
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 Shares 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 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 Underwriting 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 (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 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 any preliminary
prospectus, the Registration Statement, the Statutory Prospectus or the Prospectus, any Issuer Free Writing 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 any Preliminary Prospectus, the Registration Statement, the Statutory Prospectus or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with the Underwriting 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, fees, commissions and receipt of other such related compensation
applicable to the Shares to be purchased by such Underwriter hereunder.
(c) Any
party that proposes to assert the right to be indemnified under this Section 5 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 5, 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 5. 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 Shares 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, (i) no Underwriter (except as may be provided in any
agreement among Underwriters) shall be required to contribute any amount in excess of the underwriting discounts, fees,
commissions and receipt of other such related compensation applicable to the Shares 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 Shares 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) 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
Shares or enforce contracts for the sale of the Shares; (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 Shares or enforce contracts for
the sale of the Shares; (iii) trading in the Shares 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., the American Stock Exchange, Inc. or 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; (iv) a banking moratorium has been declared by any state or Federal authority;
or (v) in the reasonable 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 Shares or in contemplation of performing their obligations hereunder and (z) no Underwriter who shall have failed or refused
to purchase the Shares agreed to be purchased by it under this Agreement, without some reason sufficient hereunder to 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 Shares 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 Shares 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 36 hours within which to procure another party or other
parties satisfactory to the Underwriters to purchase such Shares on such terms. If, after giving effect to any arrangements
for the purchase of the Shares of a defaulting Underwriter or Underwriters by the Representative and the Company as provided
above, the aggregate number of Shares which remains unpurchased on such Closing Date does not exceed one-eleventh of the
aggregate number of all the Shares 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 Shares 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 Shares which such Underwriter agreed to purchase hereunder) of the Shares 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.
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 Shares.
9.
Miscellaneous. The respective agreements, representations, warranties, indemnities, rights of contribution 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 Shares. 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 and 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 Shares from any Underwriter
merely as a result of such purchase. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph
or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid and enforceable. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless and until the
same shall be in writing and signed by the Company and the Representative on behalf of itself and the Underwriters.
All
notices and communications hereunder 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: 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 copies to Hogan
Lovells US LLP, Columbia Square, 555 Thirteenth Street, NW, Washington, D.C. 20004, Attention: Brian O’Fahey.
This Agreement and
any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be performed in such state.
[Remainder of Page Intentionally Left
Blank.]
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.
Please confirm that the foregoing correctly
sets forth the agreement among us.
| |
Very truly yours, |
| |
|
| |
CONFORMIS, INC. |
| |
|
| |
By: |
/s/ Mark Augusti |
| |
|
Name: |
Mark Augusti |
| |
|
Title: |
President & CEO |
Confirmed:
OPPENHEIMER & CO. INC.
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/ Michael Margolis R.Ph. |
|
| |
Name: |
Michael Margolis R.Ph. |
|
| |
Title: |
Managing Director, Co-Head |
|
| |
|
of Healthcare Investment Banking |
|
SCHEDULE I
| Name | |
Number of Shares to be Purchased | |
| Oppenheimer & Co. Inc. | |
| 80,952,381 | |
| | |
| | |
| Total | |
| 80,952,381 | |
SCHEDULE II
Lock-up Signatories
Mark Augusti
Bob Howe
J. Brent Alldredge
Kenneth Fallon III
Carrie Bienkowski
Philip W. Johnston
Brad Langdale
Richard Meelia
Michael Milligan
SCHEDULE III
Issuer Free Writing Prospectuses
None.
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
