Exhibit 1.1
1,905,000 SHARES OF COMMON STOCK
ALBIREO PHARMA, INC.
UNDERWRITING AGREEMENT
January 29, 2020
JEFFERIES LLC
As Representative of the several Underwriters
c/o Jefferies LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Introductory. Albireo Pharma, Inc.,
a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule
A (the “Underwriters”) an aggregate of 2,190,750 shares (the “Shares”) of its common
stock, par value $0.01 per share (the “Common Stock”). The 1,905,000 Shares to be sold by the Company are called
the “Firm Shares.” In addition, the Company has granted to the Underwriters an option to purchase up to an additional
285,750 Shares as provided in Section 2. The additional 285,750 Shares to be sold by the Company pursuant to such option are
collectively called the “Optional Shares.” The Firm Shares and, if and to the extent such option is exercised,
the Optional Shares are collectively called the “Offered Shares.” Jefferies LLC (“Jefferies”)
has agreed to act as representative of the several Underwriters (in such capacity, the “Representative”) in
connection with the offering and sale of the Offered Shares. To the extent there are no additional underwriters listed on Schedule
A, the term “Representative” as used herein shall mean you, as Underwriter, and the term “Underwriters”
shall mean either the singular or the plural, as the context requires.
The Company has prepared and filed
with the Securities and Exchange Commission (the “Commission”) a shelf registration statement on
Form S-3, File No. 333-230108, including a base prospectus (the “Base Prospectus”) to be
used in connection with the public offering and sale of the Offered Shares. Such registration statement, as amended,
including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the
Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the
“Securities Act”), including all documents incorporated or deemed to be incorporated by reference therein
and any information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A or 430B under the
Securities Act, is called the “Registration Statement.” Any registration statement filed by the Company
pursuant to Rule 462(b) under the Securities Act in connection with the offer and sale of the Offered Shares is
called the “Rule 462(b) Registration Statement,” and from and after the date and time of filing
of any such Rule 462(b) Registration Statement the term “Registration Statement” shall include the
Rule 462(b) Registration Statement. The preliminary prospectus supplement dated January 29, 2020 describing
the Offered Shares and the offering thereof (the “Preliminary Prospectus Supplement”), together with the
Base Prospectus, is called the “Preliminary Prospectus,” and the Preliminary Prospectus and any other
prospectus supplement to the Base Prospectus in preliminary form that describes the Offered Shares and the offering thereof
and is used prior to the filing of the Prospectus (as defined below), together with the Base Prospectus, is called a
“preliminary prospectus.” As used herein, the term “Prospectus” shall mean the final
prospectus supplement to the Base Prospectus that describes the Offered Shares and the offering thereof (the “Final
Prospectus Supplement”), together with the Base Prospectus, in the form first used by the Underwriters to confirm
sales of the Offered Shares or in the form first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act. References herein to the Preliminary Prospectus, any
preliminary prospectus and the Prospectus shall refer to both the prospectus supplement and the Base Prospectus components of
such prospectus. As used herein, “Applicable Time” is 6:50 p.m. (New York City time) on
January 29, 2020. As used herein, “free writing prospectus” has the meaning set forth in
Rule 405 under the Securities Act, and “Time of Sale Prospectus” means the Preliminary Prospectus, as
amended or supplemented immediately prior to the Applicable Time, together with the free writing prospectuses, if any,
identified in Schedule B hereto, and the pricing information set forth on Schedule C hereto. As used herein, “Road
Show” means a “road show” (as defined in Rule 433 under the Securities Act) relating to the
offering of the Offered Shares contemplated hereby that is a “written communication” (as defined in Rule 405
under the Securities Act). “Marketing Materials” means any materials or information provided to investors
by, or with the approval of, the Company in connection with the marketing of the offering of the Offered Shares, including
any roadshow or investor presentations made to investors by the Company (whether in person or electronically).
All references in this Agreement to the
Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus and the Prospectus shall include
the documents incorporated or deemed to be incorporated by reference therein. All references in this Agreement to financial statements
and schedules and other information which are “contained,” “included” or “stated” in, or “part
of” the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, and all other references of like import, shall
be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated
by reference in the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be. All references in this Agreement
to amendments or supplements to the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus,
the Time of Sale Prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange
Act”) that is or is deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus,
any preliminary prospectus, the Base Prospectus, or the Prospectus, as the case may be. All references in this Agreement to (i) the
Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus or the Prospectus, any amendments
or supplements to any of the foregoing, or any free writing prospectus, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) and (ii) the Prospectus
shall be deemed to include any “electronic Prospectus” provided for use in connection with the offering of the Offered
Shares as contemplated by Section 3(n) of this Agreement.
In the event that the Company has only
one subsidiary, then all references herein to “subsidiaries” of the Company shall be deemed to refer to such single
subsidiary, mutatis mutandis.
The Company hereby confirms its agreement
with the Underwriters as follows:
Section 1. Representations
and Warranties of the Company.
The Company hereby represents, warrants
and covenants to each Underwriter, as of the date of this Agreement, as of the First Closing Date (as hereinafter defined) and
as of each Option Closing Date (as hereinafter defined), if any, as follows:
(a) Compliance
with Registration Requirements. The Registration Statement has become effective under the Securities Act. The Company has
complied, to the Commission’s satisfaction, with all requests of the Commission for additional or supplemental information,
if any. No stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose
have been instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission.
At the time the Company’s Annual Report on Form 10-K for the year ended December 31, 2018 was filed with the Commission,
or, if later, at the time the Registration Statement was originally filed with the Commission, the Company met the then-applicable
requirements for use of Form S-3 under the Securities Act. The Company meets the requirements for use of Form S-3 under
the Securities Act specified in Financial Industry Regulatory Authority (“FINRA”) Conduct Rule 5110(B)(7)(C)(i).
(b) Disclosure. Each
preliminary prospectus and the Prospectus when filed complied in all material respects with the Securities Act and, if filed
by electronic transmission pursuant to EDGAR, was identical (except as may be permitted by Regulation S-T under the
Securities Act) to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the
Offered Shares. Each of the Registration Statement and any post-effective amendment thereto, at the time it became or becomes
effective, complied and will comply in all material respects with the Securities Act and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. As of the Applicable Time, the Time of Sale Prospectus did not, and at the First Closing
Date (as defined in Section 2) and at each applicable Option Closing Date (as defined in Section 2), will not,
contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The Prospectus, as of its date, did not, and at
the First Closing Date and at each applicable Option Closing Date, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and warranties set forth in the three immediately preceding
sentences do not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto,
or the Prospectus or the Time of Sale Prospectus, or any amendments or supplements thereto, made in reliance upon and in
conformity with written information relating to any Underwriter furnished to the Company in writing by the Representative
expressly for use therein, it being understood and agreed that the only such information consists of the information
described in Section 9(b) below. There are no contracts or other documents required to be described in the Time of
Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been described or
filed as required.
(c) Free
Writing Prospectuses; Road Show. Each free writing prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act. Each
free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects
with the requirements of Rule 433 under the Securities Act, including timely filing with the Commission, retention and legending,
as applicable, and each such free writing prospectus, as of its issue date and at all subsequent times through the completion of
the public offer and sale of the Offered Shares did not, does not and will not include any information that conflicted, conflicts
or will conflict, in any material respect, with the information contained in the Registration Statement, the Prospectus or any
preliminary prospectus unless such information has been superseded or modified as of such time. Except for the free writing prospectuses,
if any, identified in Schedule B and electronic road shows, if any, furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior written consent, prepare, use or refer to, any free writing prospectus.
Each Road Show, when considered together with the Time of Sale Prospectus, did not, as of the Applicable Time, contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) Documents
Incorporated by Reference. The documents incorporated by reference in the Prospectus, when they were filed with the Commission,
conformed 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 none of such documents contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein, or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission 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 any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(e) Distribution
of Offering Material By the Company. Prior to the later of (i) the expiration or termination of the option granted
to the several Underwriters in Section 2 and (ii) the completion of the Underwriters’ distribution of the Offered
Shares, the Company has not distributed and will not distribute any offering material in connection with the offering and sale
of the Offered Shares other than the Registration Statement, the Time of Sale Prospectus, the Prospectus or any free writing prospectus
reviewed and consented to by the Representative, and the free writing prospectuses, if any, identified on Schedule B hereto.
(f) Not
an Ineligible Issuer. At the time of filing the Initial Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto, and at the date hereof, the Company was not, and the Company currently is
not, an “ineligible issuer,” as defined in Rule 405 of the Rules and Regulations.
(g) Organization
and Good Standing. The Company and each of its subsidiaries have been duly organized and are validly existing as corporations
or other legal entities in good standing (or the foreign equivalent thereof) under the laws of their respective jurisdictions of
organization. The Company and each of its subsidiaries are duly qualified to do business and are in good standing as foreign corporations
or other legal entities in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective
businesses requires such qualification and have all power and authority (corporate or other) necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to so qualify or have such power or
authority would not (i) have, singularly or in the aggregate, a material adverse effect on the business, properties, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as
a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under this Agreement
or to consummate any transactions contemplated by this Agreement, the Time of Sale Prospectus or the Prospectus (any such effect
as described in clauses (i) or (ii), a “Material Adverse Effect”). The subsidiaries listed in Schedule
D to this agreement are the only Significant Subsidiaries of the Company.
(h) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(i) The
Offered Shares. The Offered Shares to be issued and sold by the Company to the Underwriters hereunder have been duly authorized
and, when issued and delivered by the Company against payment therefor as provided pursuant to this Agreement, will be validly
issued, fully paid and nonassessable and will conform to the descriptions thereof in the Registration Statement, the Time of Sale
Prospectus and the Prospectus; and the issuance of the Offered Shares is not subject to any preemptive or similar rights.
(j) Capitalization. The
Company has an authorized capitalization as set forth under the heading “Capitalization” under the column titled
“Actual” in the Time of Sale Prospectus, and (i) to the Company’s knowledge, all of the outstanding
shares of capital stock of the Company issued prior to the Share Exchange Closing Date (defined below) have been duly
authorized and validly issued, are fully paid and non-assessable, have been issued in compliance with federal and state
securities laws, and conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus under the
headings “Description of Common Stock” and “Description of Preferred Stock” and (ii) all of the
outstanding shares of capital stock of the Company issued on and after the Share Exchange Closing Date have been duly
authorized and validly issued, are fully paid and non-assessable, have been issued in compliance with federal and state
securities laws, and conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus under the
headings “Description of Common Stock” and “Description of Preferred Stock.” To the Company’s
knowledge, all of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of
the Company’s capital stock granted prior to the Share Exchange Closing Date have been duly authorized and validly
issued and were issued in compliance with federal and state securities laws. All of the Company’s options, warrants and
other rights to purchase or exchange any securities for shares of the Company’s capital stock granted on or after the
Share Exchange Closing Date have been duly authorized and validly issued and were issued in compliance with federal and state
securities laws. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase securities of the Company. As of the Applicable Time,
there were no authorized or outstanding shares of capital stock, options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries other than those described above or accurately described in the Time
of Sale Prospectus. Since the Applicable Time, the Company has not issued any securities other than Common Stock issued
pursuant to the exercise of warrants or upon the vesting or exercise of stock options, restricted stock units or other awards
outstanding under the Company’s stock option plans, options or other securities granted or issued pursuant to the
Company’s existing equity compensation plans or other plans, and the issuance of Common Stock pursuant to employee
stock purchase plans. The description of the Company’s stock option, stock bonus and other stock plans or arrangements,
and the options or other rights granted thereunder, as described in the Time of Sale Prospectus and the Prospectus,
accurately and fairly present the information required to be shown with respect to such plans, arrangements, options and
rights. Reference is made to November 3, 2016, which was the date of the closing of the share exchange contemplated by
the Amended and Restated Share Exchange Agreement dated as of July 13, 2016, by and among Biodel Inc., Albireo Limited
and the sellers listed on Schedule I thereto (the “Share Exchange Closing Date”).
(k) Capitalization
of Subsidiaries. All the outstanding shares of capital stock (if any) of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Time of Sale Prospectus
or the Prospectus, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear
of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.
(l) No
Conflicts. The execution, delivery and performance of this Agreement by the Company, the issue and sale of the Offered
Shares by the Company and the consummation of the transactions contemplated hereby will not (with or without notice or lapse of
time or both) (i) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default
or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, encumbrance,
security interest, claim or charge upon any property or assets of the Company or any subsidiary pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries
is subject, (ii) result in any violation of the provisions of the charter or by-laws (or analogous governing instruments,
as applicable) of the Company or any of its subsidiaries or (iii) result in the violation of any law, statute, rule, regulation,
judgment, order or decree of any court or governmental or regulatory agency or body, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their properties or assets except, in the case of clauses (i) and (iii) above,
for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect.
A “Debt Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or
lapse of time would give the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company of
any of its subsidiaries.
(m) No
Consents Required. Except for the registration of the Offered Shares under the Securities Act and applicable state securities
laws, and such consents, approvals, authorizations, orders and registrations or qualifications as may be required by FINRA or the
Nasdaq Capital Market (the “Exchange”) in connection with the purchase and distribution of the Offered Shares
by the Underwriters and the listing of the Offered Shares on the Exchange, no consent, approval, authorization or order of, or
filing, qualification or registration (each an “Authorization”) with, any court, governmental or regulatory
agency or body, foreign or domestic, which has not been made, obtained or taken and is not in full force and effect, is required
for the execution, delivery and performance of this Agreement by the Company, the issuance and sale of the Offered Shares or the
consummation of the transactions contemplated hereby; and no event has occurred that allows or results in, or after notice or lapse
of time or both would allow or result in, revocation, suspension, termination or invalidation of any such Authorization or any
other impairment of the rights of the holder or maker of any such Authorization.
(n) Independent
Auditors. Ernst & Young LLP, who has audited and certified certain financial statements of the Company or its
subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
is an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of Article 2-01
of Regulation S-X and the Public Company Accounting Oversight Board (United States).
(o) Financial
Statements. The financial statements, together with the related notes, included or incorporated by reference in the
Time of Sale Prospectus, the Prospectus and the Registration Statement fairly present, in all material respects, the
consolidated financial position and the results of operations and changes in financial position of the Company and its
consolidated subsidiaries at the respective dates or for the respective periods therein specified. Such statements and
related notes have been prepared in accordance with the generally accepted accounting principles in the United States
(“GAAP”) applied on a consistent basis throughout the periods involved except as may be set forth in the
related notes included or incorporated by reference in the Time of Sale Prospectus. The financial statements, together with
the related notes, included or incorporated by reference in the Time of Sale Prospectus and the Prospectus comply in all
material respects with Regulation S-X. No other financial statements or supporting schedules or exhibits are required by
Regulation S-X to be described, included or incorporated by reference in the Registration Statement, the Time of Sale
Prospectus or the Prospectus. The summary and selected financial data included or incorporated by reference in the Time of
Sale Prospectus, the Prospectus and the Registration Statement fairly present, in all material respects, the information
shown therein as of the respective dates and for the respective periods specified and are derived from the consolidated
financial statements set forth incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the
Prospectus and other financial information. All information contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus regarding “non-GAAP financial measures” (as defined in Regulation G) complies with
Regulation G and Item 10 of Regulation S-K, to the extent applicable.
(p) eXtensible
Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared
in accordance in all material respects with the Commission’s rules and guidelines applicable thereto.
(q) No
Material Adverse Change. Neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the Time of Sale Prospectus: (i) any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or action, order or decree of any court or governmental or regulatory authority, otherwise than as set forth or contemplated in
the Time of Sale Prospectus; (ii) any change in the capital stock of the Company (other than the issuance of shares of Common
Stock (A) upon the vesting of restricted stock units and the exercise of stock options and warrants described as outstanding
in, and the grant of options and awards under existing equity incentive plans described in, the Registration Statement, the Time
of Sale Prospectus and the Prospectus or (B) in the public offerings of Common Stock under the Company’s at-the-market
offering program) or any increase in the long-term debt of the Company or any of its subsidiaries; (iii) any dividend or distribution
of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock; or (iv) any material
adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, assets,
general affairs, management, financial position, prospects, stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Time of Sale Prospectus.
(r) Legal
Proceedings. Except as set forth in the Time of Sale Prospectus, there is no legal or governmental proceeding to
which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its
subsidiaries is the subject, including any proceeding before the United States Food and Drug Administration of the U.S.
Department of Health and Human Services (“FDA”) or comparable federal, state, local or foreign
governmental bodies (it being understood that the interaction between the Company and the FDA and such comparable
governmental bodies relating to the testing, nonclinical and clinical development, manufacture and product approval process
shall not be deemed proceedings for purposes of this representation), which is required to be described in the Registration
Statement, the Time of Sale Prospectus or the Prospectus or a document incorporated by reference therein and is not described
therein, or which, singularly or in the aggregate, if determined adversely to the Company or any of its subsidiaries, would
reasonably be expected to have a Material Adverse Effect; and no such proceedings are, to the Company’s knowledge after
reasonable investigation and due diligence inquiry (if investigation or inquiry is reasonable under the circumstances)
(“Knowledge”), threatened or contemplated by governmental or regulatory authorities or threatened by
others. The Company is in compliance with all applicable federal, state, local and foreign laws, regulations, orders and
decrees governing its business as prescribed by the FDA, or any other federal, state or foreign agencies or bodies engaged in
the regulation of pharmaceuticals or biohazardous substances or materials, except where noncompliance would not, singularly
or in the aggregate, have a Material Adverse Effect. All preclinical and clinical studies conducted by or on behalf of the
Company to support approval for commercialization of the Company’s products have been conducted by the Company, or to
the Company’s Knowledge by third parties, in compliance with all applicable federal, state or foreign laws, rules,
orders and regulations, except for such failure or failures to be in compliance as would not reasonably be expected to have,
singularly or in the aggregate, a Material Adverse Effect.
(s) No
Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws
(or analogous governing instrument, as applicable), (ii) in default in any respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it is bound or to which any of its property or assets is subject, or (iii) in violation in any respect
of any law, ordinance, governmental rule, regulation or court order, decree or judgment to which it or its property or assets may
be subject (including, without limitation, those administered by the FDA or by any foreign, federal, state or local governmental
or regulatory authority performing functions similar to those performed by the FDA) except, in the case of clauses (ii) and
(iii) above, for any such violation or default that would not, singularly or in the aggregate, have a Material Adverse Effect.
(t) Licenses
or Permits. The Company and its subsidiaries possess all licenses, certificates, authorizations and permits issued by,
and have made all declarations and filings with, the appropriate local, state, federal or foreign governmental or regulatory agencies
or bodies (including, without limitation, those administered by the FDA or by any foreign, federal, state or local governmental
or regulatory authority performing functions similar to those performed by the FDA) that are necessary for the ownership or lease
of their respective properties or the conduct of their respective businesses as now conducted or as proposed in the Time of Sale
Prospectus and the Prospectus to be conducted (collectively, the “Governmental Permits”), except where any failure
to possess or make the same would not, singularly or in the aggregate, have a Material Adverse Effect. The Company and its subsidiaries
are in compliance, in all material respects, with all such Governmental Permits; and all such Governmental Permits are valid and
in full force and effect, except where the validity or failure to be in full force and effect would not, singularly or in the aggregate,
have a Material Adverse Effect. Neither the Company nor any subsidiary has received notification of any revocation, modification,
suspension, termination or invalidation (or proceedings related thereto) of any such Governmental Permit and the Company has no
reason to believe that any such Governmental Permit will not be renewed.
(u) Regulatory
Matters. The preclinical tests or studies or clinical trials conducted by or on behalf of the Company that are
described in the Time of Sale Prospectus and the Prospectus (the “Company Studies and Trials”) were, or if
still pending are being, conducted in all material respects in accordance with experimental protocols, procedures and
controls pursuant to, where applicable, accepted professional scientific standards, except as described in the Time of Sale
Prospectus; the descriptions of the results of the Company Studies and Trials contained in the Time of Sale Prospectus and
Prospectus are accurate in all material respects; the Company has no Knowledge of any other studies or trials not described
in the Time of Sale Prospectus and the Prospectus, the results of which are inconsistent with or call in question the results
described or referred to in the Time of Sale Prospectus and the Prospectus; and the Company has not received any notices or
correspondence from the FDA or any foreign, state or local governmental body exercising comparable authority requiring the
termination, suspension or material modification of any Company Studies and Trials that termination, suspension or material
modification would reasonably be expected to have a Material Adverse Effect and, to the Company’s Knowledge, there are
no reasonable grounds for the same. The Company has obtained (or caused to be obtained) informed consent by or on behalf of
each human subject who participated in the Company Studies and Trials. In using or disclosing patient information received by
the Company in connection with the Company Studies and Trials, the Company has complied in all material respects with all
laws and regulatory rules or requirements, in each case to the extent applicable, including, without limitation, the
Health Insurance Portability and Accountability Act of 1996 and the rules and regulations thereunder. To the
Company’s Knowledge, none of the Company Studies and Trials involved any investigator who has been disqualified as a
clinical investigator or has been found by the FDA to have engaged in scientific misconduct. To the Company’s
Knowledge, the manufacturing facilities and operations of its suppliers are operated in compliance in all material respects
with all applicable statutes, rules, regulations and policies of the FDA and comparable regulatory agencies outside of the
United States to which the Company is subject. For purposes of this paragraph, the Company and its subsidiaries shall be
deemed to refer to (1) Albireo Limited and its subsidiaries as they existed prior to the Share Exchange Closing Date and
(2) the Company and its subsidiaries solely from and after the Share Exchange Closing Date.
(v) Compliance
with Health Care Laws. The Company is, and at all times has been, in compliance in all material respects with all Health
Care Laws. For purposes of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. Section 301 et seq.) and the Public Health Service Act (42 U.S.C. Section 201 et seq.), and the regulations
promulgated thereunder; (ii) all applicable federal, state, local and foreign health care 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.), the criminal False Statements Law (42 U.S.C. Section 1320a-7b(a)), 18 U.S.C. Sections 286 and
287, the health care fraud criminal provisions under the Health Insurance Portability and Accountability Act (“HIPAA”)
(42 U.S.C. Section 1320d et seq.), the civil monetary penalties law (42 U.S.C. Section 1320a-7a), the exclusions law
(42 U.S.C. Section 1320a-7), the Physician Payments Sunshine Act (42 U.S.C. Section 1320-7h), laws governing government
funded or sponsored healthcare programs; (iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical
Health Act, (42 U.S.C. Section 17921 et seq.); (iv) the Patient Protection and Affordable Care Act of 2010, as amended
by the Health Care and Education Reconciliation Act of 2010; (v) licensure, quality, safety and accreditation requirements
under applicable federal, state, local or foreign laws or regulatory bodies; and (vi) all other applicable local, state, federal,
national, supranational and foreign laws, relating to the regulation of the Company, and (vii) the directives and regulations
promulgated pursuant to such statutes and any state or non-U.S. counterpart thereof. The Company has not received written notice
of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator
or governmental or regulatory authority or third party alleging that any Company product operation or activity is in violation
of any Health Care Laws nor, to the Company’s knowledge, is any such claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other similar action threatened. The Company has filed, maintained or submitted all material reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Health Care
Laws in all material respects, and all such reports, documents, forms, notices, applications, records, claims, submissions and
supplements or amendments were complete and accurate on the date filed in all material respects (or were corrected or supplemented
by a subsequent submission). Neither the Company nor, to its Knowledge, its employees, officers, directors, or agents is a party
to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or
imposed by any governmental or regulatory authority. Additionally, neither the Company nor, to its Knowledge, its employees, officers,
directors, or agents has been excluded, suspended or debarred from participation in any U.S. federal health care program or human
clinical research or is subject to a governmental inquiry, investigation, proceeding, or other similar action that could reasonably
be expected to result in debarment, suspension, or exclusion. For purposes of this paragraph, the Company and its subsidiaries
shall be deemed to refer to (1) Albireo Limited and its subsidiaries as they existed prior to the Share Exchange Closing Date
and (2) the Company and its subsidiaries solely from and after the Share Exchange Closing Date.
(w) Investment
Company Act. Neither the Company nor any of its subsidiaries is or, after giving effect to the offering of the Offered
Shares and the application of the net proceeds thereof as described in the Time of Sale Prospectus and the Prospectus, will be
required to register as an “investment company” or an entity “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder
(the “Investment Company Act”).
(x) No
Stabilization. Neither the Company nor, to the Company’s Knowledge, any of its officers, directors or affiliates
has taken or will take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security
of the Company, or which caused or resulted in, or which might in the future reasonably be expected to cause or result in, stabilization
or manipulation of the price of any security of the Company.
(y) Intellectual
Property. Except as disclosed in the Registration Statement, Time of Sale Prospectus and the Prospectus, the Company
or its subsidiaries own or possess the lawful right to use all (i) valid and enforceable patents, patent applications,
trademarks, trademark registrations, service marks, service mark registrations, Internet domain name registrations,
copyrights, copyright registrations, licenses, trade secret rights (“Intellectual Property Rights”) and
(ii) inventions, software, works of authorships, trademarks, service marks, trade names, databases, formulae, know
how, Internet domain names and other intellectual property (including trade secrets and other unpatented and/or
unpatentable proprietary confidential information, systems, or procedures) (collectively, “Intellectual Property
Assets”) necessary to conduct their respective businesses as currently conducted, and as proposed to be conducted
and described in the Time of Sale Prospectus and the Prospectus. The Company and its subsidiaries have not received any
opinion from their legal counsel concluding that any activities of their respective businesses infringe, misappropriate, or
otherwise violate, valid and enforceable Intellectual Property Rights of any other person, and have not received written
notice of any challenge, which is to their Knowledge still pending, by any other person to the rights of the Company and its
subsidiaries with respect to any Intellectual Property Rights or Intellectual Property Assets owned or used by the Company or
its subsidiaries. To the Company’s Knowledge, the Company and its subsidiaries’ respective businesses as now
conducted do not give rise to any infringement of, any misappropriation of, or other violation of, any valid and enforceable
Intellectual Property Rights of any other person. All licenses for the use of the Intellectual Property Rights described in
the Time of Sale Prospectus and the Prospectus are valid, binding upon, and enforceable by or against the respective parties
thereto in accordance with their respective terms. The Company has complied in all material respects with, and is not in
breach nor has received any asserted or threatened claim of breach of any license of its Intellectual Property Rights, and
the Company has no knowledge of any breach or anticipated breach by any other person to any Intellectual Property license.
Except as described in the Time of Sale Prospectus, no claim has been made against the Company alleging the infringement by
the Company of any patent, trademark, service mark, trade name, copyright, trade secret, license in or other intellectual
property right or franchise right of any person. The Company has taken reasonable steps to protect, maintain and safeguard
its Intellectual Property Rights, including the execution of appropriate nondisclosure and confidentiality agreements. The
consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment of
any additional amounts with respect to, nor require the consent of any other person in respect of, the Company’s right
to own, use, or hold for use any of the Intellectual Property Rights as owned, used or held for use in the conduct of the
business as currently conducted. For purposes of this paragraph, the Company and its subsidiaries shall be deemed to refer to
(1) Albireo Limited and its subsidiaries as they existed prior to the Share Exchange Closing Date and (2) the
Company and its subsidiaries solely from and after the Share Exchange Closing Date.
(z) Title
to Real and Personal Property. Except as disclosed in the Registration Statement, Time of Sale Prospectus and the Prospectus,
the Company and each of its subsidiaries have good and marketable title in and (in the case of real property) to, or have valid
and marketable rights to lease or otherwise use, all items of real or personal property which are material to the business of the
Company and its subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances, security interests, claims
and defects that (i) do not, singularly or in the aggregate, materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries or (ii) would
not reasonably be expected, singularly or in the aggregate, to have a Material Adverse Effect.
(aa) No
Labor Dispute. There is (A) no significant unfair labor practice complaint pending against the Company, or any of
its subsidiaries, nor to the Company’s Knowledge, threatened against it or any of its subsidiaries, before the National Labor
Relations Board, any state or local labor relation board or any foreign labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any collective bargaining agreement is so pending against the Company
or any of its subsidiaries, or, to the Company’s Knowledge, threatened against it and (B) no labor disturbance by or
dispute with, employees of the Company or any of its subsidiaries exists or, to the Company’s Knowledge, is contemplated
or threatened, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, manufacturers, customers or contractors, that would reasonably be expected, singularly
or in the aggregate, to have a Material Adverse Effect. The Company is not aware that any key employee or significant group of
employees of the Company or any subsidiary plans to terminate employment with the Company or any such subsidiary. For purposes
of this paragraph, the Company and its subsidiaries shall be deemed to refer to (1) Albireo Limited and its subsidiaries as
they existed prior to the Share Exchange Closing Date and (2) the Company and its subsidiaries solely from and after the Share
Exchange Closing Date.
(bb) Compliance
with ERISA. No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the “Code”)) or “accumulated funding
deficiency” (as defined in Section 302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the thirty (30)-day notice requirement under Section 4043 of ERISA has been waived)
has occurred or would reasonably be expected to occur with respect to any employee benefit plan of the Company or any of its subsidiaries
which would, singularly or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each employee benefit plan
of the Company or any of its subsidiaries is in compliance in all material respects with applicable law, including ERISA and the
Code. The Company and its subsidiaries have not incurred, and would not reasonably be expected to incur, liability under Title
IV of ERISA with respect to the termination of, or withdrawal from, any pension plan (as defined in ERISA). Each pension plan for
which the Company or any of its subsidiaries would have any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified, and nothing has occurred, whether by action or by failure to act, which would, singularly or in the aggregate,
reasonably be expected to cause the loss of such qualification. For purposes of this paragraph, the Company and its subsidiaries
shall be deemed to refer to (1) Albireo Limited and its subsidiaries as they existed prior to the Share Exchange Closing Date
and (2) the Company and its subsidiaries solely from and after the Share Exchange Closing Date.
(cc) Environmental
Laws and Hazardous Materials. The Company and its subsidiaries are in compliance in all material respects with all foreign,
federal, state and local rules, laws and regulations relating to the use, treatment, storage and disposal of hazardous or toxic
substances or waste and protection of health and safety or the environment which are applicable to their businesses (“Environmental
Laws”). There has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or
other release of any kind of toxic or other wastes or other hazardous substances by, due to, or caused by the Company or any of
its subsidiaries (or, to the Company’s Knowledge, any other entity for whose acts or omissions the Company or any of its
subsidiaries is or may otherwise be liable) upon any of the property now or previously owned or leased by the Company or any of
its subsidiaries, or upon any other property, in violation of any law, statute, ordinance, rule, regulation, order, judgment, decree
or permit or which would, under any law, statute, ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability; and there has been no disposal, discharge, emission or other release of
any kind onto such property or into the environment surrounding such property of any toxic or other wastes or other hazardous substances
with respect to which the Company or any of its subsidiaries has knowledge. For purposes of this paragraph, the Company and its
subsidiaries shall be deemed to refer to (1) Albireo Limited and its subsidiaries as they existed prior to the Share Exchange
Closing Date and (2) the Company and its subsidiaries solely from and after the Share Exchange Closing Date.
(dd) Taxes.
The Company and its subsidiaries each (i) have timely filed all necessary federal, state, local and foreign tax returns, and
all such returns were true, complete and correct, (ii) have paid all federal, state, local and foreign taxes due and payable,
for which it is liable, including, without limitation, all sales and use taxes and all taxes which the Company or any of its subsidiaries
is obligated to withhold from amounts owing to employees, creditors and third parties, and (iii) do not have any tax deficiency
or claims outstanding or assessed or, to its Knowledge, proposed against any of them, except those, in each of the cases described
in clauses (i), (ii) and (iii) above, that would not, singularly or in the aggregate, have a Material Adverse Effect.
For purposes of this paragraph, the Company and its subsidiaries shall be deemed to refer to (1) Albireo Limited and its subsidiaries
as they existed prior to the Share Exchange Closing Date and (2) the Company and its subsidiaries solely from and after the
Share Exchange Closing Date.
(ee) Insurance. The
Company and each of its subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value of their respective properties. Neither the Company nor
any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect. None of (i) Albireo Limited or any of its subsidiaries prior to
the Share Exchange Closing Date or (ii) the Company or any of its subsidiaries from and after the Share Exchange Closing
Date has received written notice from any insurer, agent of such insurer or the broker of the Company or any of its
subsidiaries that any material capital improvements or any other material expenditures (other than premium payments) are
required or necessary to be made in order to continue such insurance.
(ff) Accounting
Controls. The Company and each of its subsidiaries maintains a system of “internal control over financial reporting”
(as such term is defined in Rule 13a-15(f) of the General Rules and Regulations under the Exchange Act (the “Exchange
Act Rules”)) that, except as described in the Time of Sale Prospectus, complies with the requirements of the Exchange
Act and has been designed by their respective principal executive and principal financial officers, or under their supervision,
to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; (iv) the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences and (v) interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for
in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
Except as described in the Time of Sale Prospectus, (1) the Company’s internal control over financial reporting is effective
and (2) since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness
in the Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(gg) Disclosure
Controls. The Company and its subsidiaries maintain disclosure controls and procedures (as such is defined in Rule 13a-15(e) of
the Exchange Act Rules) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been
designed to ensure that information required to be disclosed by the Company and its subsidiaries in reports that they file or submit
under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s
rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated
to the Company’s management to allow timely decisions regarding disclosures. Since the Share Exchange Closing Date, the Company
and its subsidiaries have conducted evaluations of the effectiveness of their disclosure controls as required by Rule 13a-15
of the Exchange Act.
(hh) Minute
Books. The minute books of the Company and each of its subsidiaries that would be a “significant subsidiary”
within the meaning of Rule 1-02(w) of Regulation S-X (such a significant subsidiary of the Company, a “Significant
Subsidiary”) have been made available to the Underwriters and counsel for the Underwriters, and such books (i) contain
a complete summary, in all material respects, of all meetings and actions of the board of directors (including each board committee)
and stockholders of the Company (or analogous governing bodies and interest holders, as applicable), and each of its Significant
Subsidiaries since the time of its respective incorporation or organization through the date of the latest meeting and action,
and (ii) accurately in all material respects reflect all transactions referred to in such minutes. For purposes of this paragraph,
the Company and its Significant Subsidiaries shall be deemed to refer to (1) Albireo Limited and its Significant Subsidiaries
as they existed prior to the Share Exchange Closing Date and (2) the Company and its Significant Subsidiaries solely from
and after the Share Exchange Closing Date.
(ii) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries
on the one hand, and the directors, officers, stockholders (or analogous interest holders), customers or suppliers of the Company
or any of its affiliates on the other hand, which is required to be described in the Time of Sale Prospectus and the Prospectus
or a document incorporated by reference therein and which is not so described.
(jj) No
Registration Rights. No person or entity has the right to require registration of shares of Common Stock or other
securities of the Company or any of its subsidiaries because of the filing or effectiveness of the Registration Statement or
otherwise, except for persons and entities who have expressly waived such right in writing or who have been given timely and
proper written notice and have failed to exercise such right within the time or times required under the terms and conditions
of such right. Except as described in the Time of Sale Prospectus, there are no persons with registration rights or similar
rights to have any securities registered by the Company or any of its subsidiaries under the Securities Act.
(kk) Margin
Rules. The application of the proceeds received by the Company from the issuance, sale and delivery of the Offered Shares
as described in the Time of Sale Prospectus and the Prospectus will not violate Regulation T, U or X of the Board of Governors
of the Federal Reserve system or any other regulation of such Board of Governors.
(ll) No
Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries
or the Underwriters for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of
the Offered Shares or any transaction contemplated by this Agreement, the Registration Statement, the Time of Sale Prospectus or
the Prospectus.
(mm) No
Restrictions on Subsidiaries. Except as described in the Time of Sale Prospectus and the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying
to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties
or assets to the Company or any other subsidiary of the Company.
(nn) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E
of the Exchange Act) contained in either the Time of Sale Prospectus or the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(oo) Listing.
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and is listed
on the Exchange, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange, nor has the Company received any notification
that the Commission or FINRA is contemplating terminating such registration or listing.
(pp) Sarbanes-Oxley
Act. There is and, since the Share Exchange Closing Date, has been no failure on the part of the Company or, to the Company’s
Knowledge, any of the Company’s officers or directors, in their capacities as such, to comply with any provision of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 related to loans and Sections 302 and 906 related to certifications.
(qq) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries nor, to the Company’s Knowledge, any
director, officer, or employee of the Company or any of its subsidiaries or agent, affiliate or other person acting on behalf
of the Company or any of its subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its
subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made or taken any act in furtherance of an offer, promise, or authorization of any
direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any
government-owned or controlled entity or public international organization, or any political party, party official, or
candidate for political office; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977, as amended (the “FCPA”), the UK Bribery Act 2010, or any other applicable anti-bribery or
anti-corruption law; or (iv) made, offered, authorized, requested, or taken an act in furtherance of any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment or benefit. The Company and its subsidiaries and, to
the knowledge of the Company, the Company’s affiliates have conducted their respective businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith. For purposes of this paragraph, the Company and its subsidiaries shall be
deemed to refer to (1) Albireo Limited and its subsidiaries as they existed prior to the Share Exchange Closing Date and
(2) the Company and its subsidiaries solely from and after the Share Exchange Closing Date.
(rr) Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any subsidiary
or any other person required to be described in the Time of Sale Prospectus or the Prospectus which have not been described as
required.
(ss) Statistical
and Market Data. The statistical and market related data included in the Registration Statement, the Time of Sale Prospectus
and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate (but has not independently
verified), and such data agree with the sources from which they are derived.
(tt) Money
Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related
or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws
is pending or, to the best knowledge of the Company, threatened. For purposes of this paragraph, the Company and its subsidiaries
shall be deemed to refer to (1) Albireo Limited and its subsidiaries as they existed prior to the Share Exchange Closing Date
and (2) the Company and its subsidiaries solely from and after the Share Exchange Closing Date.
(uu) Sanctions.
Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, after due inquiry, any director, officer,
employee, agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries is currently the subject
or the target of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury
or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United
Kingdom, or other relevant sanctions authority (collectively, “Sanctions”); nor is the Company or any of its
subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions, including,
without limitation, Crimea, Cuba, Iran, North Korea, and Syria; and the Company will not directly or indirectly use the proceeds
of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner
or other person or entity, for the purpose of financing the activities of or business with any person, or in any country or territory,
that at the time of such financing, is the subject or the target of Sanctions or in any other manner that will result in a violation
by any person (including any person participating in the transaction whether as underwriter, advisor, investor or otherwise) of
applicable Sanctions. The Company and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings
or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions
or with any Sanctioned Country. For purposes of this paragraph, the Company and its subsidiaries shall be deemed to refer to (1) Albireo
Limited and its subsidiaries as they existed prior to the Share Exchange Closing Date and (2) the Company and its subsidiaries
solely from and after the Share Exchange Closing Date.
(vv) No
Associated Persons; FINRA Matters. Neither the Company nor, to the knowledge of the Company, any of its affiliates (within
the meaning of FINRA Rule 5121(f)(1)) directly or indirectly controls, is controlled by, or is under common control with,
or is an associated person (within the meaning of Article I, Section 1(ee) of the By-laws of FINRA) of, any member firm
of FINRA.
(ww) Cybersecurity. The
Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate
and perform in all material respects as required in connection with the operation of the business of the Company and its
subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware
and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable physical,
technical and administrative controls, policies, procedures, and safeguards to maintain and protect their material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data,
including “Personal Data,” used in connection with their businesses. “Personal Data” means
(i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number
or tax identification number, driver’s license number, passport number, credit card number, bank information, or
customer or account number; (ii) any information which would qualify as “personally identifying information”
under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; (iv) any
information which would qualify as “protected health information” under the Health Insurance Portability and
Accountability Act of 1996, as amended by HIPAA; and (v) any other piece of information that allows the identification
of such natural person, or his or her family, or permits the collection or analysis of any data related to an identified
person’s health or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of or
accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other
person, nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries are
presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to
the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from
unauthorized use, access, misappropriation or modification. For purposes of this paragraph, the Company and its subsidiaries
shall be deemed to refer to (1) Albireo Limited and its subsidiaries as they existed prior to the Share Exchange Closing
Date and (2) the Company and its subsidiaries solely from and after the Share Exchange Closing Date.
(xx) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with
all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company
and its subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been
and currently are in compliance with, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679)
(collectively, the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries
have in place, comply with, and take appropriate steps reasonably designed to ensure compliance with, in all material respects,
their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and
analysis of Personal Data (the “Policies”). The Company and its subsidiaries have at all times made all disclosures
to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made
or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory
rules or requirements in any material respect. The Company further certifies that neither it nor any subsidiary: (i) has
received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy
Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is
currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to
any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any
Privacy Law. For purposes of this paragraph, the Company and its subsidiaries shall be deemed to refer to (1) Albireo Limited
and its subsidiaries as they existed prior to the Share Exchange Closing Date and (2) the Company and its subsidiaries solely
from and after the Share Exchange Closing Date.
Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to any Underwriter or to counsel for the Underwriters in connection with the
offering, or the purchase and sale, of the Offered Shares shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
The Company has a reasonable basis for making
each of the representations set forth in this Section 1. The Company acknowledges that the Underwriters and, for purposes
of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Section 2. Purchase,
Sale and Delivery of the Offered Shares.
(a) The
Firm Shares. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate
of 1,905,000 Firm Shares. On the basis of the representations, warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the
respective number of Firm Shares set forth opposite their names on Schedule A. The purchase price per Firm Share to be paid
by the several Underwriters to the Company shall be $19.74 per share.
(b) The
First Closing Date. Delivery of the Firm Shares to be purchased by the Underwriters and payment therefor shall be made
at the offices of Cooley LLP, 55 Hudson Yards, New York, New York 10001 (or such other place as may be agreed to by the Company
and the Representative) at 9:00 a.m. New York City time, on February 3, 2020, or such other time and date not
later than 1:30 p.m. New York City time, on February 18, 2020 as the Representative shall designate by notice to
the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges
that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled
include, but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of
an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 11.
(c) The
Optional Shares; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of 285,750 Optional Shares from the Company at the purchase
price per share to be paid by the Underwriters for the Firm Shares, less an amount per share equal to any dividend or distribution
declared by the Company and payable on the Firm Shares but not payable on Optional Shares. The option granted hereunder may be
exercised at any time and from time to time in whole or in part upon notice by the Representative to the Company, which notice
may be given at any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the aggregate
number of Optional Shares as to which the Underwriters are exercising the option and (ii) the time, date and place at which
the Optional Shares will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date;
and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date”
shall refer to the time and date of delivery of the Firm Shares and such Optional Shares). Any such time and date of delivery,
if subsequent to the First Closing Date, is called an “Option Closing Date,” and shall be determined by the
Representative and shall not be earlier than two or later than five full business days after delivery of such notice of exercise.
If any Optional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Optional
Shares (subject to such adjustments to eliminate fractional shares as the Representative may determine) that bears the same proportion
to the total number of Optional Shares to be purchased as the number of Firm Shares set forth on Schedule A opposite the
name of such Underwriter bears to the total number of Firm Shares. The Representative may cancel the option at any time prior to
its expiration by giving written notice of such cancellation to the Company.
(d) Public
Offering of the Offered Shares. The Representative hereby advises the Company that the Underwriters intend to offer for
sale to the public, initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
their respective portions of the Offered Shares as soon after this Agreement has been executed as the Representative, in its sole
judgment, has determined is advisable and practicable.
(e) Payment
for the Offered Shares. Payment for the Offered Shares shall be made at the First Closing Date (and, if applicable, at
each Option Closing Date) by wire transfer of immediately available funds to the order of the Company.
(i) It
is understood that the Representative has been authorized, for its own account and the accounts of the several Underwriters, to
accept delivery of and receipt for, and make payment of the purchase price for, the Firm Shares and any Optional Shares the Underwriters
have agreed to purchase. Jefferies, individually and not as the Representative of the Underwriters, may (but shall not be obligated
to) make payment for any Offered Shares to be purchased by any Underwriter whose funds shall not have been received by the Representative
by the First Closing Date or the applicable Option Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
(f) Delivery
of the Offered Shares. The Company shall deliver, or cause to be delivered to the Representative for the accounts of the
several Underwriters the Firm Shares at the First Closing Date, against release of a wire transfer of immediately available funds
for the amount of the purchase price therefor. The Company shall also deliver, or cause to be delivered to the Representative for
the accounts of the several Underwriters, the Optional Shares the Underwriters have agreed to purchase at the First Closing Date
or the applicable Option Closing Date, as the case may be, against the release of a wire transfer of immediately available funds
for the amount of the purchase price therefor. If the Representative so elects, delivery of the Offered Shares may be made by credit
to the accounts designated by the Representative through The Depository Trust Company’s full fast transfer or DWAC programs.
If the Representative so elects, the certificates for the Offered Shares shall be registered in such names and denominations as
the Representative shall have requested at least two full business days prior to the First Closing Date (or the applicable Option
Closing Date, as the case may be) and shall be made available for inspection on the business day preceding the First Closing Date
(or the applicable Option Closing Date, as the case may be) at a location in New York City as the Representative may designate.
Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations
of the Underwriters.
Section 3. Additional
Covenants of the Company.
The Company further covenants and agrees
with each Underwriter as follows:
(a) Delivery
of Registration Statement, Time of Sale Prospectus and Prospectus. The Company shall furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the
period when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically or
through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Offered Shares,
as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration
Statement as you may reasonably request.
(b) Representative’s
Review of Proposed Amendments and Supplements. During the period when a prospectus relating to the Offered Shares is required
by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or
any similar rule), the Company (i) will furnish to the Representative for review, a reasonable period of time prior to the
proposed time of filing of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or
supplement and (ii) will not amend or supplement the Registration Statement (including any amendment or supplement through
incorporation of any report filed under the Exchange Act) without the Representative’s prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed. Prior to amending or supplementing any preliminary prospectus, the
Time of Sale Prospectus or the Prospectus (including any amendment or supplement through incorporation of any report filed under
the Exchange Act), the Company shall furnish to the Representative for review, a reasonable amount of time prior to the time of
filing or use of the proposed amendment or supplement, a copy of each such proposed amendment or supplement. The Company shall
not file or use any such proposed amendment or supplement without the Representative’s prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed. The Company shall file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) Free
Writing Prospectuses. The Company shall furnish to the Representative for review, a reasonable amount of time prior
to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement
thereto prepared by or on behalf of, used by, or referred to by the Company, and the Company shall not file, use or refer to
any proposed free writing prospectus or any amendment or supplement thereto without the Representative’s prior written
consent, which consent shall not be unreasonably withheld, conditioned or delayed. The Company shall furnish to each
Underwriter, without charge, as many copies of any free writing prospectus prepared by or on behalf of, used by or referred
to by the Company as such Underwriter may reasonably request. If at any time when a prospectus is required by the Securities
Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule) in connection with sales of the Offered Shares (but in any event if at any time through and including the First Closing
Date) there occurred or occurs an event or development as a result of which any free writing prospectus prepared by or on
behalf of, used by, or referred to by the Company conflicted or would conflict with the information contained in the
Registration Statement in any material respect or included or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
prevailing at such time, not misleading, the Company shall promptly amend or supplement such free writing prospectus to
eliminate or correct such conflict or so that the statements in such free writing prospectus as so amended or supplemented
will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at such time, not misleading, as the case may be; provided,
however, that prior to amending or supplementing any such free writing prospectus, the Company shall furnish to the
Representative for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such
proposed amended or supplemented free writing prospectus, and the Company shall not file, use or refer to any such amended or
supplemented free writing prospectus without the Representative’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
(d) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any action that would result in an Underwriter or
the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(e) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is being used to solicit offers to buy the Offered
Shares at a time when the Prospectus is not yet available to prospective purchasers, and any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale Prospectus does
not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances when delivered to a prospective purchaser, not misleading, or if any event shall occur or condition
exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, the Company shall (subject to Section 3(b) and Section 3(c) hereof) promptly prepare,
file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments
or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented
will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances when delivered to a prospective purchaser, not misleading or so that the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict with the information contained in the Registration Statement, or
so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) Certain
Notifications and Required Actions. After the date of this Agreement, the Company shall promptly advise the Representative
in writing of: (i) the receipt by the Company of any comments of, or requests for additional or supplemental information from,
the Commission relating to the Registration Statement; (ii) the time and date of any filing of any post-effective amendment
to the Registration Statement or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus or the Prospectus; (iii) the time and date that any post-effective amendment to the Registration Statement
becomes effective; and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or any amendment or supplement to any preliminary prospectus, the Time of Sale
Prospectus or the Prospectus or of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus,
any free writing prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation
the Shares from any securities exchange upon which they are listed for trading or included or designated for quotation, or of the
threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at any
time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment. Additionally,
the Company agrees that it shall comply with all applicable provisions of Rule 424(b), Rule 433 and Rule 430B under
the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b) or
Rule 433 were received in a timely manner by the Commission.
(g) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule) to a purchaser, not misleading, or if in the opinion of the Representative or counsel for the Underwriters it is otherwise
necessary to amend or supplement the Prospectus to comply with applicable law, the Company agrees (subject to Section 3(b) and
Section 3(c)) hereof to promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and
to any dealer upon request, amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances when the Prospectus is delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser, not misleading or so that the Prospectus,
as amended or supplemented, will comply with applicable law. Neither the Representative’s consent to, nor delivery of, any
such amendment or supplement shall constitute a waiver of any of the Company’s obligations under Section 3(b) or
Section 3(c).
(h) Blue
Sky Compliance. The Company shall cooperate with the Representative and counsel for the Underwriters to qualify or register
the Offered Shares for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those
jurisdictions designated by the Representative, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Offered Shares. The Company shall not be required to qualify
as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where
it is not presently qualified or where it would be subject to taxation as a foreign corporation as a result of such qualification.
The Company will advise the Representative promptly of the suspension of the qualification or registration of (or any such exemption
relating to) the Offered Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding
for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the
Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(i) Use
of Proceeds. The Company intends to apply the net proceeds from the sale of the Offered Shares sold by it in the manner
described under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(j) Transfer
Agent. The Company shall maintain, at its expense, a registrar and transfer agent for the Shares.
(k) Earnings
Statement. The Company will make generally available to its security holders and to the Representative as soon as practicable
an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter
of the Company commencing after the date of this Agreement that will satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
(l) Continued
Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the
completion of the distribution of the Offered Shares as contemplated by this Agreement, the Registration Statement, the
Time of Sale Prospectus and the Prospectus. Without limiting the generality of the foregoing, the Company will, during the period
when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar rule), file on a timely basis with the Commission and the
Exchange all reports and documents required to be filed under the Exchange Act.
(m) Listing.
The Company will use its best efforts to list, subject to notice of issuance, the Offered Shares on the Exchange.
(n) Company
to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet. If requested by the Representative,
the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement,
to the Representative an “electronic Prospectus” to be used by the Underwriters in connection with the offering
and sale of the Offered Shares. As used herein, the term “electronic Prospectus” means a form of Prospectus,
and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic
format, satisfactory to the Representative, that may be transmitted electronically by the Representative and the other Underwriters
to offerees and purchasers of the Offered Shares; (ii) it shall disclose the same information as the paper Prospectus, except
to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material
shall be replaced in the electronic Prospectus with a fair and accurate narrative description or tabular representation of such
material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory
to the Representative, that will allow investors to store and have continuously ready access to the Prospectus at any future time,
without charge to investors (other than any fee charged for subscription to the Internet as a whole and for on-line time). The
Company hereby confirms that it has included or will include in the Prospectus filed pursuant to EDGAR or otherwise with the Commission
and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor
or his or her representative, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the
Prospectus.
(o) Agreement
Not to Offer or Sell Additional Shares. During the period commencing on and including the date hereof and continuing through
and including the 90th day following the date of the Prospectus (such period being referred to herein as the “Lock-up
Period”), the Company will not, without the prior written consent of the Representative (which consent may be withheld
in its sole discretion), directly or indirectly: (i) sell, offer to sell, contract to sell or lend any Common Stock or Related
Securities (as defined below); (ii) effect any short sale, or establish or increase any “put equivalent position”
(as defined in Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any “call equivalent position”
(as defined in Rule 16a-1(b) under the Exchange Act) of any Common Stock or Related Securities; (iii) pledge,
hypothecate or grant any security interest in any Common Stock or Related Securities; (iv) in any other way transfer or dispose
of any Common Stock or Related Securities; (v) enter into any swap, hedge or similar arrangement or agreement that transfers,
in whole or in part, the economic risk of ownership of any Common Stock or Related Securities, regardless of whether any such transaction
is to be settled in securities, in cash or otherwise; (vi) announce the offering of any Common Stock or Related Securities;
(vii) submit or file any registration statement under the Securities Act in respect of any Common Stock or Related Securities
(other than as contemplated by this Agreement with respect to the Offered Shares); (viii) effect a reverse stock split, recapitalization,
share consolidation, reclassification or similar transaction affecting the outstanding Common Stock; or (ix) publicly announce
the intention to do any of the foregoing; provided, however, that the Company may (A) issue shares of Common Stock
and options, restricted stock units and other rights to receive or purchase shares of Common Stock, shares of Common Stock underlying
options, restricted stock units or other rights to receive or purchase shares of Common Stock, each pursuant to any director or
employee equity incentive plan, stock ownership plan or dividend reinvestment plan of the Company in effect on the date hereof
and described in the Time of Sale Prospectus; (B) issue 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 Time of Sale Prospectus; and
(C) adopt a new equity incentive plan, amend any existing equity incentive plan (including, without limitation, to increase
the number of shares reserved for issuance thereunder) and file 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 or amended equity incentive
plan, and issue securities pursuant to such new equity incentive plan or amended 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 or amended equity incentive plan), provided that (1) such new equity incentive plan or amended equity incentive plan
satisfies the transaction requirements of General Instruction A.1 of Form S-8 under the Securities Act and (2) this clause
(C) shall not be available unless each recipient of shares of Common Stock or Related Securities, (i) pursuant to such
new equity incentive plan or (ii) representing the additional shares reserved for issuance under such existing equity incentive
plan pursuant to such amendment to such existing 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. For purposes of
the foregoing, “Related Securities” shall mean any options or warrants or other rights to acquire Common Stock
or any securities exchangeable or exercisable for or convertible into Common Stock, or to acquire other securities or rights ultimately
exchangeable or exercisable for, or convertible into, Common Stock.
(p) Future
Reports to the Representative. During the period of five years hereafter, the Company will furnish to the Representative,
c/o Jefferies, at 520 Madison Avenue, New York, New York 10022, Attention: Global Head of Syndicate: (i) as soon as practicable
after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of
the close of such fiscal year and statements of income, stockholders’ equity and cash flows for the year then ended and the
opinion thereon of the Company’s independent public or certified public accountants; (ii) as soon as practicable after
the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K or other report filed by the Company with the Commission, FINRA or any securities exchange; and (iii) as
soon as available, copies of any report or communication of the Company furnished or made available generally to holders of its
capital stock; provided, however, that the requirements of this Section 3(p) shall be satisfied to the extent
that such reports, statement, communications, financial statements or other documents are available on EDGAR or the Company’s
website.
(q) Investment
Limitation. The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Offered
Shares in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the
Investment Company Act.
(r) No
Stabilization or Manipulation; Compliance with Regulation M. The Company will not take, and will ensure that no affiliate
of the Company will take, directly or indirectly, any action designed to or that might cause or result in stabilization or manipulation
of the price of the Shares or any reference security with respect to the Shares, whether to facilitate the sale or resale of the
Offered Shares or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all applicable provisions
of Regulation M.
(s) Enforce
Lock-Up Agreements. During the Lock-up Period, the Company will enforce all agreements between the Company and any of its
securityholders that restrict or prohibit, expressly or in operation, the offer, sale or transfer of Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock or any of the other actions restricted or prohibited under the
terms of the form of Lock-up Agreement in Exhibit A attached hereto. In addition, the Company will direct the transfer
agent to place stop transfer restrictions upon any such securities of the Company that are bound by such “lock-up”
agreements for the duration of the periods contemplated in such agreements, including, without limitation, “lock-up”
agreements entered into by the Company’s officers and directors pursuant to Section 6(i) hereof.
(t) Company
to Provide Interim Financial Statements. Prior to the First Closing Date and each applicable Option Closing Date, the Company
will furnish the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing
in the Registration Statement and the Prospectus.
(u) Announcement
Regarding Lock-ups. The Company agrees to announce the Underwriters’ intention to release any director or “officer”
(within the meaning of Rule 16a-1(f) under the Exchange Act) of the Company from any of the restrictions imposed by any
Lock-Up Agreement, by issuing, through a major news service, a press release in form and substance satisfactory to the Representative
or, if consented to by the Representative, in a registration statement that is publicly filed in connection with a secondary offering
of the Company’s shares promptly following the Company’s receipt of any notification from the Representative in which
such intention is indicated, but in any case not later than the close of the third business day prior to the date on which such
release or waiver is to become effective; provided, however, that nothing shall prevent the Representative, on behalf of the Underwriters,
from announcing the same through a major news service, irrespective of whether the Company has made the required announcement;
and provided, further, that no such announcement shall be made of any release or waiver granted solely to permit
a transfer of securities that is not for consideration and where the transferee has agreed in writing to be bound by the terms
of a Lock-Up Agreement in the form set forth as Exhibit A hereto.
Section 4. Payment
of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident
to the issuance and delivery of the Offered Shares (including all printing and engraving costs), (ii) all fees and expenses
of the registrar and transfer agent of the Shares, (iii) all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale of the Offered Shares to the Underwriters, (iv) all fees and expenses of the Company’s counsel,
independent public or certified public accountants and other advisors, (v) all costs and expenses incurred in connection with
the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits,
schedules, consents and certificates of experts), the Time of Sale Prospectus, the Prospectus, each free writing prospectus prepared
by or on behalf of, used by, or referred to by the Company, and each preliminary prospectus, and all amendments and supplements
thereto, and this Agreement, (vi) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or
the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of)
all or any part of the Offered Shares for offer and sale under the state securities or blue sky laws, and, if requested by the
Representative, preparing and printing a “Blue Sky Survey” or memorandum and a “Canadian wrapper”, and
any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions (such fees and expenses
of counsel in an aggregate amount not to exceed $10,000), (vii) the costs, fees and expenses incurred by the Underwriters
in connection with determining their compliance with the rules and regulations of FINRA related to the Underwriters’
participation in the offering and distribution of the Offered Shares, including any related filing fees and the legal fees of,
and disbursements by, counsel to the Underwriters, in an aggregate amount not to exceed $10,000, (viii) the costs and expenses
of the Company relating to investor presentations on any “road show” undertaken in connection with the offering of
the Offered Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic
road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives,
employees and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road
show, (ix) the fees and expenses associated with listing the Offered Shares on the Exchange, and (x) all other fees,
costs and expenses of the nature referred to in Item 14 of Part II of the Registration Statement. Except as provided in this
Section 4 or in Section 7, Section 9 or Section 10 hereof, the Underwriters shall pay their own expenses, including
the fees and disbursements of their counsel.
Section 5. Covenant
of the Underwriters. Each Underwriter severally and not jointly covenants with the Company not to take any action that would
result in the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of such Underwriter that otherwise would not, but for such actions, be required to
be filed by the Company under Rule 433(d).
Section 6. Conditions
of the Obligations of the Underwriters. The respective obligations of the several Underwriters hereunder to purchase and pay
for the Offered Shares as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing
Date, shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1
hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as
of each Option Closing Date as though then made, to the timely performance by the Company of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Comfort
Letter. On the date hereof, the Representative shall have received from Ernst & Young LLP, independent registered
public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory
to the Representative, containing statements and information of the type ordinarily included in accountant’s “comfort
letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin),
with respect to the audited and unaudited consolidated financial statements of the Company and certain financial information contained
in the Registration Statement, the Time of Sale Prospectus, and each free writing prospectus, if any.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from FINRA. For the period from and after the date of this
Agreement and through and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing
Date, each Option Closing Date:
(i) The
Company shall have filed the Prospectus with the Commission (including the information required by Rule 430A or previously
omitted from the Registration Statement pursuant to Rule 430B under the Securities Act) in the manner and within the time
period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment
to the Registration Statement containing the information required by such Rule 430A or previously omitted from the Registration
Statement pursuant to such Rule 430B, and such post-effective amendment shall have become effective.
(ii) No
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement
shall be in effect, and no proceedings for such purpose shall have been instituted or threatened by the Commission.
(iii) If
a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting
terms and arrangements.
(c) No
Material Adverse Effect or Ratings Agency Change. For the period from and after the date of this Agreement and through
and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each Option
Closing Date:
(i) in
the judgment of the Representative there shall not have occurred any Material Adverse Effect; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities
of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” as that term
is used in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act.
(d) Opinion
and Negative Assurance Letter of Counsel for the Company. On each of the First Closing Date and each Option Closing Date
the Representative shall have received the opinion and negative assurance letter of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C., counsel for the Company, dated as of such date, in form and substance reasonably satisfactory to the Representative.
(e) Opinion
of Intellectual Property Counsel for the Company. On each of the First Closing Date and each Option Closing Date, the Representative
shall have received the opinion of Fish & Richardson P.C., counsel for the Company with respect to intellectual property,
dated as of such date, in form and substance reasonably satisfactory to the Representative.
(f) Opinion
and Negative Assurance Letter of Counsel for the Underwriters. On each of the First Closing Date and each Option Closing
Date the Representative shall have received the opinion and negative assurance letter of Cooley LLP, counsel for the Underwriters
in connection with the offer and sale of the Offered Shares, in form and substance satisfactory to the Representative, dated as
of such date.
(g) Officers’
Certificate. On each of the First Closing Date and each Option Closing Date, the Representative shall have received a certificate
executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company, dated as of
such date, to the effect set forth in Section 6(b)(ii) and further to the effect that:
(i) for
the period from and including the date of this Agreement through and including such date, there has not occurred any Material Adverse
Effect;
(ii) the
representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with
the same force and effect as though expressly made on and as of such date; and
(iii) the
Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to such date.
(h) Bring-down
Comfort Letter. On each of the First Closing Date and each Option Closing Date, the Representative shall have received
from Ernst & Young LLP, independent registered public accountants for the Company, a letter dated such date, in form and
substance satisfactory to the Representative, which letter shall: (i) reaffirm the statements made in the letter furnished
by them pursuant to Section 6(a), except that the specified date referred to therein for the carrying out of procedures shall
be no more than three business days prior to the First Closing Date or the applicable Option Closing Date, as the case may be;
and (ii) cover certain financial information contained in the Prospectus.
(i) Lock-Up
Agreements. On or prior to the date hereof, the Company shall have furnished to the Representative an agreement in the
form of Exhibit A hereto from each of the persons listed on Exhibit B hereto, and each such agreement shall
be in full force and effect on each of the First Closing Date and each Option Closing Date.
(j) Rule 462(b) Registration
Statement. In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated
by this Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission on the date of this
Agreement and shall have become effective automatically upon such filing.
(k) Approval
of Listing. The Company shall have submitted a listing of additional shares notification to the Exchange with respect to
the Offered Shares and shall have received no objection to list thereto from the Exchange.
(l) CFO
Certificate. On the date of this Agreement and on the First Closing Date or the applicable Option Closing Date, as the
case may be, the Company shall have furnished to the Representative a certificate, dated the respective dates of delivery thereof
and addressed to the Underwriters, of its chief financial officer with respect to certain financial data contained in the Time
of Sale Prospectus and the Prospectus, providing “management comfort” with respect to such information, in form and
substance reasonably satisfactory to the Representative.
(m) Additional
Documents. On or before each of the First Closing Date and each Option Closing Date, the Representative and counsel for
the Underwriters shall have received such information, documents and opinions as they may reasonably request for the purposes of
enabling them to pass upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence the accuracy
of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of the Offered Shares as contemplated herein and
in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representative
and counsel for the Underwriters.
If any condition specified in this Section 6
is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice from the
Representative to the Company at any time on or prior to the First Closing Date and, with respect to the Optional Shares, at any
time on or prior to the applicable Option Closing Date, which termination shall be without liability on the part of any party to
any other party, except that Section 4, Section 7, Section 9 and Section 10 shall at all times be effective
and shall survive such termination.
Section 7. Reimbursement
of Underwriters’ Expenses. If this Agreement is terminated by the Representative pursuant to Section 6,
Section 11, or Section 12, or if the sale to the Underwriters of the Offered Shares on the First Closing Date is
not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to
comply with any provision hereof, the Company agrees to reimburse the Representative and the other Underwriters (or such
Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all out-of-pocket
expenses that shall have been reasonably incurred by the Representative and the Underwriters in connection with the proposed
purchase and the offering and sale of the Offered Shares, including, but not limited to, fees and disbursements of counsel,
printing expenses, travel expenses, postage, facsimile and telephone charges.
Section 8. Effectiveness
of this Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Section 9. Indemnification.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers,
employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange
Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such affiliate, director,
officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or
state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Offered Shares have been offered or
sold or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, or any amendment thereto, or 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; or (ii) any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that
the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act, any
Marketing Material or the Prospectus (or any amendment or supplement to the foregoing), or the omission or alleged omission to
state therein a material fact necessary in order to make the statements, in the light of the circumstances under which they were
made, not misleading; or (iii) any act or failure to act or any alleged act or failure to act by any Underwriter in connection
with, or relating in any manner to, the Shares or the offering contemplated hereby, and which is included as part of or referred
to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) or (ii) above;
and to reimburse each Underwriter and each such affiliate, director, officer, employee, agent and controlling person for any and
all expenses (including the fees and disbursements of counsel) as such expenses are incurred by such Underwriter or such affiliate,
director, officer, employee, agent or controlling person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company by the Representative in writing expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any such free writing prospectus, any Marketing Material or
the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information consists
of the information described in Section 9(b) below. The indemnity agreement set forth in this Section 9(a) shall
be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company, or any such director, officer or controlling person may become
subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law
or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, or 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 or (ii) any untrue statement or
alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433 of the
Securities Act or the Prospectus (or any such amendment or supplement) or the omission or alleged omission to state therein a
material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, such preliminary prospectus, the Time of Sale
Prospectus, such free writing prospectus or the Prospectus (or any such amendment or supplement), in reliance upon and in
conformity with information relating to such Underwriter furnished to the Company by the Representative in writing expressly
for use therein; and to reimburse the Company, or any such director, officer or controlling person for any and all expenses
(including the fees and disbursements of counsel) as such expenses are incurred by the Company, or any such director, officer
or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. The Company hereby acknowledges that the only information that the Representative has
furnished to the Company expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, any free writing prospectus that the Company has filed, or is required to file, pursuant to
Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement to the foregoing) are the
statements set forth in first sentence of the third paragraph under the caption “Underwriting”, the first
sentence of the first paragraph under the section entitled “Commission and Expenses”, the first sentence of the
first paragraph under the section entitled “Stabilization,” each under the caption “Underwriting” in
the Preliminary Prospectus Supplement and the Final Prospectus Supplement. The indemnity agreement set forth in this
Section 9(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 9 of notice
of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 9, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify
the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party to
the extent the indemnifying party is not materially prejudiced as a proximate result of such failure and shall not in any event
relieve the indemnifying party from any liability that it may have otherwise than on account of this indemnity agreement. In case
any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly
with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party’s election to so assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 9 for
any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel (together
with local counsel), representing the indemnified parties who are parties to such action), which counsel (together with any local
counsel) for the indemnified parties shall be selected by Jefferies (in the case of counsel for the indemnified parties referred
to in Section 9(a) above) or by the Company (in the case of counsel for the indemnified parties referred to in Section 9(b) above))
or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of the indemnifying party, in each of which cases the
fees and expenses of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 9 shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by Section 9(c) hereof, the indemnifying party
shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry
of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise
or consent includes an unconditional release of such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf
of such indemnified party.
Section 10. Contribution.
If the indemnification provided for in Section 9 is for any reason held to be unavailable to or otherwise insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result
of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the
Offered Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Offered Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total
proceeds from the offering of the Offered Shares pursuant to this Agreement (before deducting expenses) received by the Company,
and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth on the front cover
page of the Prospectus, bear to the aggregate public offering price of the Offered Shares as set forth on such cover. The
relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as
a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 9(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 9(c) with respect to notice
of commencement of any action shall apply if a claim for contribution is to be made under this Section 10; provided, however,
that no additional notice shall be required with respect to any action for which notice has been given under Section 9(c) for
purposes of indemnification.
The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 10 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 in this Section 10.
Notwithstanding the provisions of this
Section 10, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and
commissions received by such Underwriter in connection with the Offered Shares underwritten by it and distributed to the
public. 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. The
Underwriters’ obligations to contribute pursuant to this Section 10 are several, and not joint, in proportion to
their respective underwriting commitments as set forth opposite their respective names on Schedule A. For purposes of
this Section 10, each affiliate, director, officer, employee and agent of an Underwriter and each person, if any, who
controls an Underwriter within the meaning of the Securities Act or 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 Securities Act and the Exchange Act
shall have the same rights to contribution as the Company.
Section 11. Default
of One or More of the Several Underwriters. If, on the First Closing Date or any Option Closing Date any one or more
of the several Underwriters shall fail or refuse to purchase Offered Shares that it or they have agreed to purchase hereunder on
such date, and the aggregate number of Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase does not exceed 10% of the aggregate number of the Offered Shares to be purchased on such date, the Representative
may make arrangements satisfactory to the Company for the purchase of such Offered Shares by other persons, including any of the
Underwriters, but if no such arrangements are made by such date, the other Underwriters shall be obligated, severally and not jointly,
in the proportions that the number of Firm Shares set forth opposite their respective names on Schedule A bears to the aggregate
number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may
be specified by the Representative with the consent of the non-defaulting Underwriters, to purchase the Offered Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the First Closing Date or
any Option Closing Date any one or more of the Underwriters shall fail or refuse to purchase Offered Shares and the aggregate number
of Offered Shares with respect to which such default occurs exceeds 10% of the aggregate number of Offered Shares to be purchased
on such date, and arrangements satisfactory to the Representative and the Company for the purchase of such Offered Shares are not
made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except
that the provisions of Section 4, Section 7, Section 9 and Section 10 shall at all times be effective and shall
survive such termination. In any such case either the Representative or the Company shall have the right to postpone the First
Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days in order that
the required changes, if any, to the Registration Statement and the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter”
shall be deemed to include any person substituted for a defaulting Underwriter under this Section 11. Any action taken under
this Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
Section 12. Termination
of this Agreement. Prior to the purchase of the Firm Shares by the Underwriters on the First Closing Date, this
Agreement may be terminated by the Representative by notice given to the Company if at any time: (i) trading or
quotation in any of the Company’s securities shall have been suspended or limited by the Commission or by the Exchange,
or trading in securities generally on the New York Stock Exchange, Nasdaq Global Select Market, Nasdaq Global Market, the
Exchange or the NYSE MKT LLC shall have been suspended or limited, or minimum or maximum prices shall have been generally
established on any of such stock exchanges; (ii) a general banking moratorium shall have been declared by any of
federal, New York or Massachusetts authorities; (iii) there shall have occurred any outbreak or escalation of national
or international hostilities or any crisis or calamity, or any change in the United States or international financial
markets, or any substantial change or development involving a prospective substantial change in United States’ or
international political, financial or economic conditions, as in the judgment of the Representative is material and adverse
and makes it impracticable to market the Offered Shares in the manner and on the terms described in the Time of Sale
Prospectus or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the
Representative there shall have occurred any Material Adverse Effect; or (v) the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character as in the judgment of the Representative may
interfere materially with the conduct of the business and operations of the Company regardless of whether or not such loss
shall have been insured. Any termination pursuant to this Section 12 shall be without liability on the part of
(a) the Company to any Underwriter, except that the Company shall be obligated to reimburse the expenses of the
Representative and the Underwriters pursuant to Section 4 or Section 7 hereof or (b) any Underwriter to
the Company; provided, however, that the provisions of Section 9 and Section 10 shall at all times be
effective and shall survive such termination.
Section 13. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Offered
Shares pursuant to this Agreement, including the determination of the public offering price of the Offered Shares and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction,
each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders,
creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether
such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the
Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ
from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with
respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
Section 14. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements
of the Company, of its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of its or
their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding,
will survive delivery of and payment for the Offered Shares sold hereunder and any termination of this Agreement.
Section 15. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
| If to the Representative: |
Jefferies LLC |
|
520 Madison Avenue
New York, New York 10022
Facsimile: (646) 619-4437
Attention: General Counsel |
| |
|
| with a copy to: |
Divakar Gupta |
| |
Cooley LLP |
| |
55 Hudson Yards |
| |
New York, New York 10001 |
| |
Facsimile: (212) 479-6275 |
| |
|
| If to the Company: |
Albireo Pharma, Inc.
10 Post Office Square, Suite 1000 |
| |
Boston, Massachusetts 02109 |
| |
Attention: Chief Financial Officer |
| |
|
| with a copy to: |
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
| |
One Financial Center |
| |
Boston, Massachusetts 02111 |
| |
Facsimile: (617) 542-2241 |
| |
Attention: Megan N. Gates |
Any party hereto may change the address for receipt of communications
by giving written notice to the others.
Section 16. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 11 hereof, and to the benefit of the affiliates, directors, officers, employees, agents and controlling persons
referred to in Section 9 and Section 10, and in each case their respective successors, and no other person will have
any right or obligation hereunder. The term “successors” shall not include any purchaser of the Offered Shares
as such from any of the Underwriters merely by reason of such purchase.
Section 17. Partial
Unenforceability. 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.
Section 18. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime,
the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective
to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such
interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are
permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime
if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Agreement, (A) “BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §
1841(k); (B) “Covered Entity” means any of the following: (i) a “covered entity” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable; and (D) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance
Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection
Act and the regulations promulgated thereunder.
Section 19. Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts
of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New
York in each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified
Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other
proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such
court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
Section 20. General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written
or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit. The section headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges
that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions
hereof, including, without limitation, the indemnification provisions of Section 9 and the contribution provisions of Section 10,
and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 9
and Section 10 hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its
affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, each free writing prospectus and the Prospectus (and any amendments and supplements to
the foregoing), as contemplated by the Securities Act and the Exchange Act.
If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along
with all counterparts hereof, shall become a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
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ALBIREO PHARMA, INC. |
| |
|
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By: |
/s/
Simon Harford |
| |
|
Name: Simon Harford |
| |
|
Title: CFO |
The foregoing Underwriting Agreement is
hereby confirmed and accepted by the Representative in New York, New York as of the date first above written.
| JEFFERIES LLC |
|
|
Acting individually and as Representative
of the several Underwriters
named in
the attached Schedule A. |
|
|
| JEFFERIES LLC | |
|
| | |
|
| By: |
/s/ Matthew
Kim | |
|
| |
Name: Matthew Kim | |
|
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Title: Managing Director | |
|
Schedule A
| Underwriters |
|
Number of
Firm Shares
to be Purchased |
|
| Jefferies LLC |
|
|
1,905,000 |
|
| Total |
|
|
1,905,000 |
|
Schedule B
Free Writing Prospectuses Included
in the Time of Sale Prospectus
None.
Schedule C
Pricing Information
| Price per Share to the Public: | |
$ | 21.00 | |
| Number of Firm Shares: | |
| 1,905,000 | |
| Number of Optional Shares: | |
| 285,750 | |
Schedule D
Significant Subsidiaries of the Company
Albireo AB, a company incorporated in Sweden
Elobix AB, a company incorporated in Sweden
Albireo Security Corp., a Massachusetts corporation
Albireo Pharma Security Corporation, a Massachusetts corporation
Exhibit A
Form of Lock-up Agreement
January ___, 2020
Jefferies
LLC
As Representative of the Several Underwriters
c/o Jefferies LLC
520 Madison Avenue
New York, New York 10022
Re: Albireo Pharma, Inc.
Ladies & Gentleman:
This Agreement is being delivered to you in connection with
the proposed Underwriting Agreement (the “Underwriting Agreement”) between Albireo Pharma, Inc.,
a Delaware corporation (the “Company”), and Jefferies LLC, as representative (the “Representative”)
of a group of underwriters (collectively, the “Underwriters”), to be named therein, and the other parties
thereto (if any), relating to the proposed public offering of shares of the common stock, par value $0.01 per share (the “Common
Stock”), of the Company.
In order to induce you and the other Underwriters to enter into
the Underwriting Agreement, and in light of the benefits that the offering of the Common Stock will confer upon the undersigned
in its capacity as a securityholder and/or an officer, director or employee of the Company, and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter that, during the period
beginning on the date hereof through and including the date that is the 90th day after the date of the Underwriting Agreement (the “Lock-Up Period”),
the undersigned will not, without the prior written consent of the Representative, directly or indirectly, (i) offer, sell,
assign, transfer, pledge, contract to sell, or otherwise dispose of, or announce the intention to otherwise dispose of, any shares
of Common Stock (including, without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations promulgated under the Securities Act of 1933, as the same may be amended or supplemented
from time to time (such shares, the “Beneficially Owned Shares”)) or securities convertible into or exercisable
or exchangeable for Common Stock, (ii) enter into any swap, hedge or similar agreement or arrangement that transfers in whole
or in part, the economic risk of ownership of the Beneficially Owned Shares or securities convertible into or exercisable or exchangeable
for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter
acquires the power of disposition, or (iii) engage in any short selling of the Common Stock or securities convertible into
or exercisable or exchangeable for Common Stock.
The restrictions set forth in the immediately preceding paragraph
shall not apply to:
(1) if the undersigned is a natural person, any
transfers made by the undersigned (a) as a bona fide gift to any member of the immediate family (as defined below) of the
undersigned or to a trust the beneficiaries of which are exclusively the undersigned or members of the undersigned’s immediate
family, (b) by will or intestate succession upon the death of the undersigned, (c) as a bona fide gift to a charity or
educational institution or (d) by operation of law pursuant to a domestic order or negotiated divorce settlement,
(2) if the undersigned is a corporation, partnership,
limited liability company or other business entity, any transfers to any stockholder, partner or member of, or owner of a similar
equity interest in, the undersigned, as the case may be, if, in any such case, such transfer is not for value,
(3) if the undersigned is a corporation, partnership,
limited liability company or other business entity, any transfer made by the undersigned (a) in connection with the sale or
other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership
interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s
assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (b) to another
corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate (as defined
below) of the undersigned and such transfer is not for value,
(4) transactions relating to Common Stock or
other securities convertible into or exercisable or exchangeable for Common Stock acquired in open market transactions after completion
of the Offering, provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5
or otherwise) during the Lock-Up Period,
(5) the entry, by the undersigned, at any time
on or after the date of the Underwriting Agreement, of any trading plan providing for the sale of Common Stock by the undersigned,
which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act, provided, however, that such plan
does not provide for, or permit, the sale of any Common Stock during the Lock-up Period and no public announcement or
filing is voluntarily made or required regarding such plan during the Lock-Up Period,
(6) any transfers made by the undersigned to
the Company to satisfy tax withholding obligations pursuant to the Company’s equity incentive plans or arrangements disclosed
in the Prospectus (as defined in the Underwriting Agreement),
(7) pursuant to a bona fide third party tender
offer for all outstanding shares of Common Stock, merger, consolidation or other similar transaction made to all holders of the
Company’s securities involving a change of control of the Company (including, without limitation, the entering into any lock-up, voting
or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of shares of Common
Stock or other such securities in connection with such transaction, or vote any shares of Common Stock or other such securities
in favor of any such transaction), provided that in the event that such tender offer, merger, consolidation or other such transaction
is not completed, such securities held by the undersigned shall remain subject to the provisions of this Agreement, and
(8) if the undersigned is an individual, sales
pursuant to a trading plan or arrangement pursuant to Rule 10b5-1 under the Exchange Act established before the date of the
Prospectus; provided, that any filing made under the Exchange Act in connection with such a sale shall disclose that the sale was
made pursuant to a Rule 10b5-1 trading plan or arrangement entered into or established on a date before the date of the Prospectus,
provided, however, that in the case of any transfer
described in clause (1), (2) or (3) above, it shall be a condition to the transfer that (A) the transferee
executes and delivers to the Representative, acting on behalf of the Underwriters, not later than one business day prior to
such transfer, a written agreement, in substantially the form of this agreement (it being understood that any references to
“immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate
family of the undersigned and not to the immediate family of the transferee) and otherwise satisfactory in form and substance
to the Representative, and (B) in the case of any transfer described in clause (1), (2), (3) or (6) above, if
the undersigned is required to file a report under Section 16(a) of the Securities Exchange Act of 1934, as
amended, reporting a reduction in beneficial ownership of shares of Common Stock or Beneficially Owned Shares or any
securities convertible into or exercisable or exchangeable for Common Stock or Beneficially Owned Shares during
the Lock-Up Period, the undersigned shall include a statement in such report to the effect that, (A) in the
case of any transfer pursuant to clause (1) above, such transfer is being made as a gift, by will or intestate
succession or by operation of law, (B) in the case of any transfer pursuant to clause (2) above, such transfer is
being made to a stockholder, partner or member of, or owner of a similar equity interest in, the undersigned and is not a
transfer for value, (C) in the case of any transfer pursuant to clause (3) above, such transfer is being made
either (a) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all
of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as
the case may be, or all or substantially all of the undersigned’s assets or (b) to another corporation,
partnership, limited liability company or other business entity that is an affiliate of the undersigned and such transfer is
not for value, (D) in the case of any transfer pursuant to clause (6) above, such transfer is being made to satisfy
tax withholding obligations. For purposes of this paragraph, “immediate family” shall mean a spouse, child,
grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the undersigned; and
“affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended.
For avoidance of doubt, nothing in this Agreement prohibits
the vesting of restricted stock units or the undersigned from exercising any options or warrants to purchase Common Stock (which
exercises may be effected on a net issuance basis to the extent the instruments representing such options or warrants permit exercises
on a net issuance basis), it being understood that any Common Stock issued upon such vesting or exercises will be subject to the
restrictions of this Agreement.
In order to enable this covenant to be enforced, the undersigned
hereby consents to the placing of legends or stop transfer instructions with the Company’s transfer agent with respect to
any Common Stock or securities convertible into or exercisable or exchangeable for Common Stock.
The undersigned further agrees that it will not, during the Lock-Up Period,
make any demand or request for or exercise any right with respect to the registration under the Securities Act of 1933, as amended,
of any shares of Common Stock or other Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable
for Common Stock or other Beneficially Owned Shares.
This Agreement and all authority herein conferred are irrevocable
and shall survive the death or incapacity of the undersigned and shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this agreement and that this agreement has been duly authorized (if the undersigned
is not a natural person), executed and delivered by the undersigned and is a valid and binding agreement of the undersigned. This
agreement and all authority herein conferred are irrevocable and shall survive the death or incapacity of the undersigned (if a
natural person) and shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York applicable to agreements made and to be performed in such state.
If (i) the Company notifies the Representative in writing
that it does not intend to proceed with the Offering, (ii) the Underwriting Agreement is not executed by February 15,
2020, or (iii) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or
be terminated for any reason prior to payment for and delivery of any Common Stock to be sold thereunder, then this Agreement shall
immediately be terminated and the undersigned shall automatically be released from all of his, her or its obligations under this
Agreement. The undersigned acknowledges and agrees that whether or not any public offering of Common Stock actually occurs depends
on a number of factors, including market conditions.
[Signature page follows]
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Very truly yours, |
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|
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|
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(Name of Stockholder - Please Print) |
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(Signature) |
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(Name of Signatory if Stockholder is an entity - Please Print) |
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(Title of Signatory if Stockholder is an entity - Please Print) |
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Address: |
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Exhibit B
Directors and Officers
Signing
Lock-up Agreement
Directors:
David Chiswell
Michael Gutch
Roger A. Jeffs
Anne Klibanski
Stephanie S. Okey
Davey S. Scoon
Officers:
Ronald H.W. Cooper
Simon N.R. Harford
Patrick Horn
Martha Carter
Jan Mattsson
Jason Duncan
Pamela Stephenson
Michelle Graham
