Exhibit 1.1
Execution
Version
30,434,783
Shares
OCUGEN, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
Underwriting Agreement
July 31, 2024
Titan Partners Group LLC,
a division of American Capital Partners, LLC
As the Representative of the several Underwriters
listed in Schedule A hereto
c/o Titan Partners Group LLC,
a division of American Capital Partners, LLC
4 World Trade Center, 29th Floor
New York, NY 10007
Ladies and Gentlemen:
Ocugen, Inc., a Delaware
corporation (the “Company”), confirms its agreement with Titan Partners Group LLC, a division of American Capital Partners,
LLC (“Titan Partners”), and each of the other Underwriters named in Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section
10 hereof), for which Titan Partners is acting as representative (in such capacity, the “Representative”), with respect
to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers
of shares of common stock, par value $0.01 per share, of the Company (“Common Stock”) set forth in Schedule A
hereto and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 4,565,217 additional shares of Common Stock. The aforesaid 30,434,783 shares of Common Stock (the “Closing
Shares”) to be purchased by the Underwriters and all or any part of the 4,565,217 shares of Common Stock subject to the option
described in Section 2(b) hereof (the “Option Shares”) are herein called, collectively, the “Shares.”
The Company understands that
the Underwriters propose to make a public offering of the Shares as soon as the Representative deems advisable after this Underwriting
Agreement (this “Agreement”) has been executed and delivered.
The Company has filed with
the Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3 (No. 333-278774),
covering the public offering and sale of certain securities, including the Shares, under the Securities Act of 1933, as amended (the “1933
Act”) and the rules and regulations of the Commission promulgated thereunder (the “1933 Act Regulations”),
which shelf registration statement was declared effective on May 1, 2024. Such registration statement, as of any time, means such
registration statement as amended by any post-effective amendments thereto to such time, including the exhibits and any schedules thereto
at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3
under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B under the 1933 Act
Regulations (“Rule 430B”), and is referred to herein as the “Registration Statement;” provided, however,
that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective
amendments thereto as of the time of the first contract of sale for the Shares, which time shall be considered the “new effective
date” of such registration statement with respect to the Shares within the meaning of paragraph (f)(2) of Rule 430B, including
the exhibits and schedules thereto as of such time, the documents incorporated or deemed incorporated by reference therein at such time
pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant
to the Rule 430B. Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations in connection with
the offer and sale of the Shares is herein called the “Rule 462(b) Registration Statement” and, after such
filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. Each preliminary
prospectus used in connection with the offering of the Shares, including the documents incorporated or deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as a “preliminary prospectus.”
Promptly after execution and delivery of this Agreement, the Company will prepare and file a final prospectus relating to the Shares in
accordance with the provisions of Rule 424(b) under the 1933 Act Regulations (“Rule 424(b)”). The final
prospectus, in the form first furnished or made available to the Underwriters for use in connection with the offering of the Shares, including
the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act,
are collectively referred to herein as the “Prospectus.” For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (or any successor system)(“EDGAR”).
As used in this Agreement:
“Applicable
Time” means 6:30 P.M., New York City time, on July 31, 2024 or such other time as agreed by the Company and the Representative.
“General
Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most
recent preliminary prospectus (including any documents incorporated therein by reference) that is distributed to investors prior to the
Applicable Time and the information included on Schedule B-1 hereto, all considered together.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in
Rule 405 of the 1933 Act Regulations (“Rule 405”)) relating to the Shares that is (i) required to be
filed with the Commission by the Company, (ii) a “road show for an offering that is a written communication” within the
meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the
Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Shares or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective
investors (other than a “bona fide electronic road show,” as defined in Rule 433 (a “Bona Fide Electronic
Road Show”)), as evidenced by its being specified in Schedule B-2 hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of
the 1933 Act.
“Written
Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning
of Rule 405 under the 1933 Act.
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included” or “stated”
(or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include
all such financial statements and schedules and other information incorporated or deemed incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the execution and delivery of this Agreement; and
all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “1934 Act”), incorporated or deemed to be incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the case may be, at or after the execution and delivery of this
Agreement.
SECTION 1. Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time,
the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(a) Registration
Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any amendment thereto has become effective under the 1933 Act, including General Instruction I.B.1 of Form S-3. The
aggregate market value of the outstanding voting and non-voting common equity (as defined in 1933 Act Rule 405) of the Company held
by persons other than affiliates of the Company (pursuant to 1933 Act Rule 144, those that directly, or indirectly through one or
more intermediaries, control, or are controlled by, or are under common control with, the Company) (the “Non-Affiliate Shares”),
was equal to or greater than $150 million (calculated by multiplying (x) the highest price at which the common equity of the Company
closed on Nasdaq within 60 days of the date of this Agreement times (y) the number of Non-Affiliate Shares). The Company is not a
shell company (as defined in Rule 405 under the 1933 Act) and has not been a shell company for at least 12 calendar months previously
and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6
of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.
No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued by the
Commission under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued
by the Commission and no proceedings for any of those purposes have been instituted by the Commission or are pending or, to the Company’s
knowledge, contemplated by the Commission. The Company has complied with each request (if any) from the Commission for additional information.
Each of the Registration Statement
and any post-effective amendment thereto, at the time of its effectiveness and at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, complied in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each
was filed with the Commission, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each
preliminary prospectus delivered to the Underwriters for use in connection with the offering and the Prospectus was or will be identical
to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
The documents incorporated
or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time
they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”).
The Registration Statement,
any preliminary prospectus and the Prospectus, and the filing of the Registration Statement, any preliminary prospectus and the Prospectus
with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant
to such authorization.
(b) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, at the Closing Time or at any Date
of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will 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, none of (A) the
General Disclosure Package, (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General
Disclosure Package, nor (C) any individual Written Testing-the-Waters Communication, when considered together with the General Disclosure
Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will 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.
Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of
any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, included, includes or will
include an untrue statement of a material fact or omitted, omits or will 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 documents incorporated or deemed
to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration
Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read
together with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be,
did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
The representations and warranties
in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto, including any prospectus wrapper) made in reliance upon
and in conformity with written information furnished to the Company by any Underwriter through the Representative expressly for use therein.
For purposes of this Agreement, the only information so furnished shall be the information in the first and second paragraphs under the
caption “Underwriting-Price Stabilization, Short Positions and Penalty Bids” in each case contained in the Prospectus (collectively,
the “Underwriter Information”).
(c) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed
to be a part thereof that has not been superseded or modified. No filing of any “road show” (as defined in Rule 433(h))
is required in connection with the offering of the Shares. Any Issuer Free Writing Prospectus that the Company is required to file pursuant
to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the
1933 Act and the 1933 Act Regulations. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the 1933 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 the 1933 Act and the 1933 Act Regulations. Except for the Issuer Free Writing
Prospectuses, if any, identified in Schedule B-2 hereto, and electronic road shows, if any, each furnished to the Representative
before first use, the Company has not prepared, used or referred to, and will not, without the prior consent of the Representative, prepare,
use or refer to, any issuer free writing prospectus. Any offer that is a written communication relating to the Shares made prior to the
initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph
only, of Rule 163(c) of the 1933 Act Regulations) has been filed with the Commission in accordance with the exemption provided
by Rule 163 under the 1933 Act Regulations (“Rule 163”) and otherwise complied with the requirements of Rule 163,
including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933
Act provided by Rule 163.
(d) Testing-the-Waters
Materials. The Company (A) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications
with the consent of the Representative with entities that are qualified institutional buyers within the meaning of Rule 144A under
the 1933 Act or institutions that are accredited investors within the meaning of Rule 501 under the 1933 Act and (B) has not
authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The Company reconfirms that the Representative
has been authorized to act on its behalf in undertaking Testing-the-Waters Communications.
(e) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an ineligible issuer.
(f) Independent
Accountants. Ernst & Young LLP (the “Accountant”), whose report on the consolidated financial statements
of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K filed with the
Commission and incorporated by reference into the Registration Statement, the General Disclosure Package and the Prospectus, are and,
during the periods covered by their report, were an independent registered public accounting firm within the meaning of the 1933 Act and
the Public Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of
the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to
the Company.
(g) SEC
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under
the 1933 Act and the 1934 Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve months preceding the
date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the 1933 Act and the 1934 Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
Company has never been an issuer subject to Rule 144(i) under the 1933 Act.
(h) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus, if any, together with the related notes and schedules, present fairly, in all material
respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated and the
consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified and
have been prepared in compliance with the requirements of the 1933 Act and 1934 Act and in conformity with U.S. generally accepted accounting
principles (“GAAP”) applied on a consistent basis during the periods involved (except for such adjustments to accounting
standards and practices as are noted therein and except in the case of unaudited financial statements to the extent they may exclude footnotes
or may be condensed or summary statements); the other financial and statistical data with respect to the Company and the Subsidiaries
contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, if any, are accurately
and fairly presented in all material respects and prepared on a basis consistent with the financial statements and books and records of
the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference
in the Registration Statement, the General Disclosure Package and the Prospectus that are not included or incorporated by reference as
required; the Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance
sheet obligations), not described in the Registration Statement (excluding the exhibits thereto), the General Disclosure Package and the
Prospectus; and all disclosures contained or incorporated by reference in the Registration Statement, the General Disclosure Package,
the Prospectus and the Issuer Free Writing Prospectuses, if any, regarding “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the 1934 Act and Item
10 of Regulation S-K under the 1933 Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement, the General Disclosure Package, and the Prospectus 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.
(i) Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act and the rules and regulations
promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each former principal
executive officer of the Company and each former principal financial officer of the Company as applicable) has made all certifications
required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents
required to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.
(j) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement, the General
Disclosure Package, the Prospectus and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference
therein), there has not been (i) any Material Adverse Effect (as defined below) or the occurrence of any development that the Company
reasonably expects will result in a Material Adverse Effect, (ii) any transaction which is material to the Company and the Subsidiaries
taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred
by the Company or any Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any material change
in the capital stock or outstanding long-term indebtedness of the Company or any of its Subsidiaries (other than as a result of (a) the
sale of Shares, (b) the issuance or vesting of equity awards under the Company’s existing equity incentive or stock option
plans or (c) the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, shares of
Common Stock outstanding on the date hereof) or (v) any dividend or distribution of any kind declared, paid or made on the capital
stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in
the Registration Statement, the General Disclosure Package or the Prospectus (including any document deemed incorporated by reference
therein).
(k) Litigation.
Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus, there are no actions, suits or proceedings
by or before any Governmental Entity (as defined below) pending, nor, to the Company’s knowledge, any audits or investigations by
or before any Governmental Entity to which the Company or a Subsidiary is a party or to which any property of the Company or any of its
Subsidiaries is the subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and,
to the Company’s knowledge, no such actions, suits, proceedings, audits or investigations are threatened or contemplated by any
Governmental Entity or threatened by others; and (i) there are no current or pending audits or investigations, actions, suits or
proceedings by or before any Governmental Entity that are required under the 1933 Act to be described in the General Disclosure Package
and the Prospectus that are not so described; and (ii) there are no contracts or other documents that are required under the 1933
Act to be filed as exhibits to the Registration Statement that are not so filed.
(l) Organization.
The Company and each of its Subsidiaries (as defined in Rule 405 under the 1933 Act) (“Subsidiaries”) are duly
organized, validly existing as a corporation and in good standing under the laws of their respective jurisdictions of organization. The
Company and each of its Subsidiaries are duly licensed or qualified as a foreign corporation for transaction of business and in good standing
under the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective
businesses requires such license or qualification, and have all corporate power and authority necessary to own or hold their respective
properties and to conduct their respective businesses as described in the Registration Statement, the General Disclosure Package and the
Prospectus, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or
in the aggregate, have a material adverse effect or would reasonably be expected to have a material adverse effect on or affecting the
assets, business, operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results
of operations of the Company and the Subsidiaries taken as a whole, or prevent or materially interfere with consummation of the transactions
contemplated hereby (a “Material Adverse Effect”).
(m) Good
Standing of the Company’s Subsidiaries. The Subsidiaries are the Company’s only significant subsidiaries (as such term
is defined in Rule 1-02 of Regulation S-X promulgated by the Commission). Except as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus, the Company owns, directly or indirectly, all of the equity interests of the Subsidiaries
free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests
of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. No Subsidiary is currently
prohibited, directly or indirectly, 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 property or assets to the Company or any other Subsidiary of the Company .
(n) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and nonassessable and, other
than as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, are not subject to any preemptive rights,
rights of first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus as of the dates referred to therein (other than the grant of additional options
under the Company’s existing equity incentive or stock option plans, or changes in the number of outstanding shares of Common Stock
of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, Common
Stock outstanding on the date hereof) and such authorized capital stock conforms in all material respects to the description thereof set
forth in the Registration Statement, the General Disclosure Package and the Prospectus. The description of the securities of the Company
in the Registration Statement, the General Disclosure Package and the Prospectus is complete and accurate in all material respects. Except
as disclosed in or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, as of the date referred
to therein, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, or any securities
or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock or
other securities.
(o) Authorization
of Agreement. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except to the extent that enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles
or (ii) the indemnification and contribution provisions of Section 6 and Section 7 hereof may be limited by federal or
state securities laws and public policy considerations in respect thereof.
(p) Authorization
and Description of Securities. The Shares, have been duly authorized for issuance and sale pursuant to this Agreement, and when issued
and delivered by the Company against payment therefor as provided herein, will be duly and validly issued, fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest or other claim, including any statutory or contractual preemptive rights,
resale rights, rights of first refusal or other similar rights, and will be registered pursuant to Section 12 of the 1934 Act. The
Shares, when issued, will conform in all material respects to the description thereof set forth in or incorporated into the Registration
Statement, the General Disclosure Package and the Prospectus.
(q) Registration
Rights. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, to the extent that any
person has the right to require the Company to register any securities for sale under the 1934 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Shares, those rights have been waived as of the date of this Agreement with
respect to such filing or issuance and sale of Shares pursuant to this Agreement.
(r) No
Preferential Rights. Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, (i) no
person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act (each, a “Person”),
has the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other
capital stock or other securities of the Company (other than outstanding options or warrants to purchase Common Stock or options or other
equity securities that may be granted from time to time under the Company's equity incentive plans which are disclosed in the Registration
Statement, the General Disclosure Package and Prospectus), (ii) no Person has any preemptive rights, resale rights, rights of first
refusal, rights of co-sale, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any
Common Stock or shares of any other capital stock or other securities of the Company, (iii) no Person has the right to act as an
underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, and (iv) no Person has
the right, contractual or otherwise, to require the Company to register under the 1933 Act any Common Stock or shares of any other capital
stock or other securities of the Company, or to include any such shares or other securities in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated
thereby or otherwise.
(s) Absence
of Violations or Defaults. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in 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 are subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any Governmental Entity, except, in the
case of each of clauses (ii) and (iii) above, for any such violation or default that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, no other party under any material contract
or other agreement to which it or any of its Subsidiaries is a party is in default in any respect thereunder where such default would
have a Material Adverse Effect.
(t) No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Shares, nor the consummation of any
of the transactions contemplated herein, nor the compliance by the Company with the terms and provisions hereof will conflict with, or
will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default under, or has resulted
in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant
to the terms of any contract or other agreement to which the Company may be bound or to which any of the property or assets of the Company
is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts, breaches and defaults
that would not reasonably be expected to have a Material Adverse Effect; nor will such action result (x) in any violation of the
provisions of the organizational or governing documents of the Company, or (y) in any material violation of the provisions of any
statute or any order, rule or regulation applicable to the Company or of any Governmental Entity having jurisdiction over the Company.
(u) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the 1934 Act since
the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term
leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(v) Listing.
The shares of Common Stock are registered pursuant to Section 12(b) or 12(g) of the 1934 Act and are listed on The Nasdaq
Capital Market (“Nasdaq”), and the Company has taken no action designed to, or likely to have the effect of, terminating
the registration of the shares of Common Stock under the 1934 Act or delisting the shares of Common Stock from Nasdaq, nor has the Company
received any notification that the Commission or Nasdaq is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of Nasdaq.
(w) Absence
of Labor Dispute. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge
of the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.
(x) Absence
of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no
action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity (including, without limitation, any action,
suit proceeding, inquiry or investigation before or brought by the U.S. Food and Drug Administration (the “FDA”), the
European Medicines Agency (the “EMA”), Health Canada, or any comparable regulatory authority in any jurisdiction) now
pending or, to the knowledge of the Company, threatened, against or affecting the Company or its Subsidiaries, which would reasonably
be expected to result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect their respective
properties or assets or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations
hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company or any such Subsidiary is a party or
of which any of their respective properties or assets is the subject which are not described in the Registration Statement, the General
Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not reasonably be expected
to result in a Material Adverse Effect.
(y) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(z) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Entity is
required for the execution, delivery and performance by the Company of this Agreement and the issuance and sale by the Company of the
Shares as contemplated by this Agreement, except for such consents, approvals, authorizations, orders and registrations or qualifications
as may be required under applicable state securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority
(“FINRA”) or Nasdaq (as defined herein) in connection with the sale of the Shares by the Underwriters.
(aa) Consents
and Permits. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company and
its Subsidiaries have made all filings, applications and submissions required by, possesses and is operating in compliance with, all approvals,
licenses, certificates, certifications, clearances, consents, grants, exemptions, marks, notifications, orders, permits and other authorizations
issued by, the appropriate federal, state or foreign Governmental Entity (including, without limitation, the FDA, the United States Drug
Enforcement Administration or any other foreign, federal, state, provincial, court or local government or regulatory authorities including
self-regulatory organizations engaged in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials
such as institutional review boards and institutional biosafety committees) necessary for the ownership or lease of their respective properties
or to conduct its businesses as described in the Registration Statement, the General Disclosure Package and the Prospectus (collectively,
“Permits”), except for such Permits the failure of which to possess, obtain or make the same would not reasonably be
expected to have a Material Adverse Effect; the Company and its Subsidiaries are in compliance with the terms and conditions of all such
Permits, except where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect; all of the Permits
are valid and in full force and effect, except where any invalidity, individually or in the aggregate, would not be reasonably expected
to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any written notice relating to the
limitation, revocation, cancellation, suspension, modification or non-renewal of any such Permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect, or has any
reason to believe that any such Permit will not be renewed in the ordinary course. To the extent required by applicable laws and regulations
of the FDA and comparable foreign regulatory authorities, the Company or the applicable Subsidiary has submitted to the FDA an Investigational
New Drug Application or Clinical Trial Application, as applicable, or an amendment or supplement thereto for each clinical trial it has
conducted or sponsored or is conducting or sponsoring; except as disclosed in the Registration Statement, the General Disclosure Package
and the Prospectus, all such submissions were in material compliance with applicable laws and rules and regulations when submitted
and no material deficiencies have been asserted by the FDA or any comparable regulatory authority with respect to any such submissions.
(bb) Regulatory
Filings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company
nor any of its Subsidiaries has failed to file with the applicable Governmental Entities (including, without limitation, the FDA, or any
foreign, federal, state, provincial or local Governmental Entity performing functions similar to those performed by the FDA) any required
filing, declaration, listing, registration, report or submission, except for such failures that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect; except as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, all such filings, declarations, listings, registrations, reports or submissions were in compliance with applicable
laws when filed and no deficiencies have been asserted by any applicable regulatory authority with respect to any such filings, declarations,
listings, registrations, reports or submissions, except for any deficiencies that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect. The Company has operated and currently is, in all material respects, in compliance with
the United States Federal Food, Drug, and Cosmetic Act, all applicable rules and regulations of the FDA, and all applicable laws,
rules, and regulations administered or enforced by other federal, state, local and foreign Governmental Entity exercising comparable authority
(including, without limitation, the EMA and Health Canada).
(cc) Title
to Property. Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus, the Company and
its Subsidiaries have good and marketable title in fee simple to all items of real property owned by them, good and valid title to all
personal property (other than Intellectual Property, which is addressed in Section 1(bb) below), described in the Registration
Statement, the General Disclosure Package or the Prospectus as being owned by them, in each case free and clear of all liens, encumbrances
and claims, except those matters that (i) do not materially interfere with the use made and proposed to be made of such property
by the Company and any of its Subsidiaries or (ii) would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Any real or personal property described in the Registration Statement, the General Disclosure Package or the
Prospectus as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except
those that (A) do not materially interfere with the use made or proposed to be made of such property by the Company or any of its
Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. Each of
the properties of the Company and its Subsidiaries complies with all applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access to such properties), except if and to the extent disclosed
in the Registration Statement, the General Disclosure Package or the Prospectus or except for such failures to comply that would not,
individually or in the aggregate, reasonably be expected to interfere in any material respect with the use made and proposed to be made
of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or its subsidiaries
has received from any Governmental Entities any notice of any condemnation of, or zoning change affecting, the properties of the Company
and its Subsidiaries, and the Company knows of no such condemnation or zoning change which is threatened, except for such that would not
reasonably be expected to interfere in any material respect with the use made and proposed to be made of such property by the Company
and its Subsidiaries or otherwise have a Material Adverse Effect, individually or in the aggregate.
(dd) Intellectual
Property. The Company and its Subsidiaries own, possess, license or have other rights to use, or can acquire on reasonable terms a
license or other rights to use, all foreign and domestic patents, patent applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, Internet domain names, know-how and other
intellectual property (collectively, the “Intellectual Property”), necessary for the conduct of their respective businesses
as now conducted except to the extent that the failure to own, possess, license or otherwise hold adequate rights to use such Intellectual
Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in
the Registration Statement, the General Disclosure Package and the Prospectus (i) to the Company’s knowledge, there are no
rights of third parties to any such Intellectual Property owned by the Company and its Subsidiaries; (ii) to the Company’s
knowledge, there is no infringement by third parties of any such Intellectual Property; (iii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s and its Subsidiaries’ rights in
or to any such Intellectual Property, and the Company is unaware of any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any such Intellectual Property; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate
any patent, trademark, copyright, trade secret or other proprietary rights of others; (vi) to the Company’s knowledge, there
is no third-party U.S. patent or published U.S. patent application which contains claims for which an Interference Proceeding (as defined
in 35 U.S.C. § 135) has been commenced against any patent or patent application described in the Prospectus as being owned by or
licensed to the Company; and (vii) the Company and its Subsidiaries have complied with the terms of each agreement pursuant to which
Intellectual Property has been licensed to the Company or such Subsidiary, and all such agreements are in full force and effect, except,
in the case of any of clauses (i)-(vii) above, for any such infringement by third parties or any such pending or threatened suit,
action, proceeding or claim as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(ee) Compliance
with Laws. Each of the Company and its Subsidiaries: (A) is and at all times has been in compliance with all statutes, rules,
or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, labeling, storage, import,
export or disposal of any of its products (“Applicable Laws”), except as could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; (B) has not received any FDA Form 483, warning letter, untitled
letter or other correspondence or notice from the FDA or any other Governmental Entity alleging or asserting noncompliance with any Applicable
Laws or Permits required by any such Applicable Laws; (C) has not received notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any Governmental Entity or third party alleging that any product operation
or activity is in violation of any Applicable Laws or Permits and has no knowledge that any such Governmental Entity or third party is
considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (D) has not received notice that
any Governmental Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any Permit and has no knowledge
that any such Governmental Entity is considering such action; and (E) has not, either voluntarily or involuntarily, initiated, conducted,
or issued or caused to be initiated, conducted or issued, any recall, field notification, safety alert, warning, investigator notice,
administrative detention, or other notice or action relating to an alleged lack of safety, efficacy, or regulatory compliance of any product
or any alleged product defect and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate any
such notice or action.
(ff) Clinical
Studies. The preclinical studies and tests and clinical trials described in the General Disclosure Package and the Prospectus being
conducted by or on behalf of the Company were, and, if still pending, are being conducted in all material respects in accordance with
all Applicable Laws and with the experimental protocols, procedures and controls pursuant to, where applicable, accepted professional
and scientific standards for products or product candidates comparable to those being developed by the Company; the descriptions of such
studies, tests and trials, and the results thereof, contained in the General Disclosure Package and the Prospectus are accurate and complete
in all material respects; and except as described or referred to Registration Statement, General Disclosure Package, or the Prospectus,
the Company has not received any written notice or correspondence from the FDA or any foreign, state or local Governmental Entity exercising
comparable authority or any institutional review board or comparable authority that now requires the Company to terminate, suspend, implement
a clinical hold on or make material modification to any tests, studies or trials being conducted by or on behalf of the Company that are
described or referred to in the Registration Statement, General Disclosure Package and the Prospectus.
(gg) Environmental
Laws. Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus, the Company and its Subsidiaries
(i) are in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders
relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their respective businesses as described in the Registration
Statement, the General Disclosure Package and the Prospectus; and (iii) have not received notice of any actual or potential liability
for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required
permits, licenses, other approvals or liability as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(hh) Accounting
Controls and Disclosure Controls. The Company and each of its Subsidiaries, on a consolidated basis, maintain systems of internal
accounting controls that are designed to provide reasonable assurance 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 generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. As of the end
of the Company’s most recently completed fiscal year, except as disclosed in the Company’s SEC Reports, the Company’s
internal control over financial reporting was effective and the Company is not aware of any material weaknesses in its internal control
over financial reporting (other than as set forth in the Prospectus). Since the date of the latest audited financial statements of the
Company included in the General Disclosure Package and the Prospectus, there has been 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 (other than as set forth in the General Disclosure Package and the Prospectus). The Company has established disclosure
controls and procedures (as defined in 1934 Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and
procedures to provide reasonable assurance that material information relating to the Company and each of its Subsidiaries is made known
to the certifying officers by others within those entities, particularly during the period in which the Company’s Annual Report
on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s certifying officers
have evaluated the effectiveness of the Company’s disclosure controls and procedures as of a date within 90 days prior to the filing
date of the Form 10-K for the year ended December 31, 2023 (such date, the “Evaluation Date”). The Company
presented in its Form 10-K for the year ended December 31, 2023 the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the Evaluation Date and the disclosure controls and procedures
are effective. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such term
is defined in Item 307 of Regulation S-K under the 1933 Act) or, to the Company’s knowledge, in other factors that could significantly
affect the Company’s internal controls.
(ii) Payment
of Taxes. The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required
to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being
contested in good faith, except where the failure to so file or pay would not reasonably be expected to have a Material Adverse Effect.
Except as otherwise disclosed in or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no tax
deficiency has been determined adversely to the Company or any of its Subsidiaries which has had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental
tax deficiency, penalty or assessment which has been or might be asserted or threatened against it which would reasonably be expected
to have a Material Adverse Effect.
(jj) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and
each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies of similar
size, engaged in similar businesses in similar industries.
(kk) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Shares as herein contemplated and the application
of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not be
required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ll) Absence
of Manipulation. Neither the Company, nor any of the Subsidiaries, nor, to the Company’s knowledge, any of their respective
directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably
be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
(mm) No
Improper Practices. (i) Neither the Company nor the Subsidiaries, nor, to the Company’s knowledge, any director, officer,
or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf
of the Company or any Subsidiary has, in the past five years, made any unlawful contributions to any candidate for any political office
(or failed fully to disclose any contribution in violation of applicable law) or made any contribution or other payment to any official
of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty
in violation of any applicable law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or
indirect, exists between or among the Company or any Subsidiary or any affiliate of any of them, on the one hand, and the directors, officers
and stockholders of the Company or any Subsidiary, on the other hand, that is required by the 1933 Act to be described in the Registration
Statement, the General Disclosure Package and the Prospectus that is not so described; (iii) the Company has not offered, or caused
any placement agent to offer, Common Stock to any person with the intent to influence unlawfully (A) a customer or supplier of the
Company or any Subsidiary to alter the customer’s or supplier’s level or type of business with the Company or any Subsidiary
or (B) a trade journalist or publication to write or publish favorable information about the Company or any Subsidiary or any of
their respective products or services, and, (iv) neither the Company nor any Subsidiary nor, to the Company’s knowledge, any
director, officer or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person
acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any applicable provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law (collectively, “Anti-Corruption
Laws”), (B) promised, offered, provided, attempted to provide or authorized the provision of anything of value, directly
or indirectly, to any person for the purpose of obtaining or retaining business, influencing any act or decision of the recipient, or
securing any improper advantage; or (C) made any payment of funds of the Company or any Subsidiary or received or retained any funds
in violation of any Anti-Corruption Laws.
(nn) 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 rules, regulations
or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any Governmental Entity involving the Company or its Subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(oo) Sanctions.
(i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”)
or, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph(oo), “Person”) that is, or is owned or controlled by a Person that is:
| (A) | the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office
of Foreign Assets Control (“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury,
or other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and
Blocked Persons List or OFAC’s Foreign Sanctions Evaders List (as amended, collectively, “Sanctions”), nor |
| (B) | located, organized or resident in a country or territory that is the subject of Sanctions that broadly
prohibit dealings with that country or territory (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and the Crimea
Region of the Ukraine) (the “Sanctioned Countries”) |
(ii) The Entity represents and covenants that it will
not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other Person:
| (A) | to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions or is a Sanctioned Country; or |
| (B) | in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise). |
(iii) The Entity represents and covenants that, except
as detailed in the Registration Statement and the Prospectus, for the past 5 years, it has not engaged in, is not now engaging in, and
will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions or is or was a Sanctioned Country.
(pp) Statistical
and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package
or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate
represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
(qq) No
Broker Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to Underwriters
pursuant to this Agreement.
(rr) Transactions
With Affiliates and Employees. Except as set forth in the General Disclosure Package, none of the officers or directors of the Company
or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to
any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to
or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any officer, director
or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(ss) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Representative’s
request.
(tt) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a
bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(uu) FINRA
Affiliation. No officer, director or any beneficial owner of 10% or more of the Company’s unregistered securities has any direct
or indirect affiliation or association with any FINRA member (as determined in accordance with the rules and regulations of FINRA)
that is participating in the offering of the Shares. The Company will advise the Representative and Underwriters’ counsel if it
learns that any officer, director or owner of 10% or more of (i) the Company’s outstanding shares of Common Stock or (ii) any
securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without
limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock is or becomes an affiliate or associated person
of a FINRA member firm.
(vv) 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 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 all “Personal Data” (defined below) and all sensitive, confidential or regulated data (“Confidential
Data”) used in connection with their businesses. “Personal Data” means (i) a natural person’s
name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s
license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which
would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal
data” as defined by GDPR; (iv) any information which would qualify as “protected health information” under the
Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical
Health Act (collectively, “HIPAA”); (v) any “personal information” as defined by the California Consumer
Privacy Act (“CCPA”); and (vi) 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, Confidential Data, and Personal Data and to the protection of such IT
Systems, Confidential Data, and Personal Data from unauthorized use, access, misappropriation or modification.
(ww) 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, CCPA, and the European Union General
Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”). To ensure
compliance with the Privacy Laws, the Company has in place, complies with, and takes appropriate steps to ensure compliance in all material
respects with their policies and procedures relating to data privacy and security and the collection, storage, use, processing, disclosure,
handling, and analysis of Personal Data and Confidential Data (the “Policies”). The Company has 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 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.
(xx) ERISA
Compliance. To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed
to by the Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but
not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within
the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to
the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and for
each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value
of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.
(yy) Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the General Disclosure Package and the
Prospectus, other than such agreements that have expired by their terms or whose termination is disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus, are legal, valid and binding obligations of the Company enforceable in accordance with
their respective terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions
of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof, except for
any unenforceability that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(zz) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or, to the
Company’s knowledge, any of its affiliates and any unconsolidated entity, including, but not limited to, any structural finance,
special purpose or limited purpose entity (each, an “Off-Balance Sheet Transaction”) that could reasonably be expected
to affect materially the Company’s liquidity or the availability of or requirements for its capital resources, including those Off-Balance
Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions
and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which have not been described
as required.
(aaa) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the 1933 Act and Section 21E of the 1934
Act) (a “Forward-Looking Statement”) contained in the Registration Statement, the General Disclosure Package and the
Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(bbb) Dividend
Restrictions. No subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company,
or from making any other distribution with respect to such subsidiary’s equity securities or from repaying to the Company or any
other subsidiary of the Company any amounts that may from time to time become due under any loans or advances to such subsidiary from
the Company or from transferring any property or assets to the Company or to any other subsidiary.
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 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 5 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. Sale
and Delivery to Underwriters; Closing.
(a) Closing
Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in Schedule A, that number of Closing Shares set forth in Schedule A
opposite the name of such Underwriter, plus any additional number of Closing Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters as the Representative
in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(b) Option
Shares. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional 4,565,217
shares of Common Stock, at the price per share set forth in Schedule A, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Closing Shares but not payable on the Option Shares. The option hereby granted
may be exercised for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time upon notice
by the Representative to the Company setting forth the number of Option Shares as to which the several Underwriters are then exercising
the option and the time and date of payment and delivery for such Option Shares. Any such time and date of delivery (a “Date
of Delivery”) shall be determined by the Representative, but any Date of Delivery after the Closing Time shall not be later
than seven full business days nor earlier than one full business day after the exercise of said option, nor in any event prior to the
Closing Time. If the option is exercised as to all or any portion of the Option Shares, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option Shares then being purchased which the number of Closing Shares
set forth in Schedule A opposite the name of such Underwriter bears to the total number of Closing Shares, subject, in each case,
to such adjustments as the Representative in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(c) Payment.
Payment of the purchase price for, and delivery of certificates or security entitlements for, the Closing Shares shall be made at the
offices of Underwriter’s Counsel, or at such other place as shall be agreed upon by the Representative and the Company, at 10:00 A.M. (New
York City time) on the first (second, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after
the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representative and the Company (such time and date of payment and delivery being herein
called “Closing Time”). Delivery of the Closing Shares at the Closing Time shall be made through the facilities of
The Depository Trust Company unless the Representative shall otherwise instruct.
In addition, in the event
that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates
or security entitlements for, such Option Shares shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representative and the Company, on each Date of Delivery as specified in the notice from the Representative to the Company.
Delivery of the Option Shares on each such Date of Delivery shall be made through the facilities of The Depository Trust Company unless
the Representative shall otherwise instruct.
Payment shall be made to the
Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representative
for the respective accounts of the Underwriters of certificates or security entitlements for the Shares to be purchased by them. It is
understood that each Underwriter has authorized the Representative, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Closing Shares and the Option Shares, if any, which it has agreed to purchase. Titan Partners, individually
and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Closing
Shares or the Option Shares, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.
SECTION 3. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements
of Rule 430B, and will notify the Representative as soon as practicable, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (including any document incorporated by reference therein) or for additional
information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of
the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning
the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection
with the offering of the Shares. The Company will effect all filings required under Rule 424(b), in the manner and within the time
period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible
moment. The Company shall pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under
the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under
the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance
with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b)).
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and in the Registration
Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Shares is (or, but for
the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933
Act to be delivered in connection with sales of the Shares, any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that
the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the
Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement
the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly (A) give the Representative notice of such event, (B) prepare any amendment
or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish
the Representative with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement;
provided that the Company shall not file or use any such amendment or supplement to which the Representative or counsel for the Underwriters
shall object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may
reasonably request. The Company has given the Representative notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations
within 48 hours prior to the Applicable Time; the Company will give the Representative notice of its intention to make any such filing
from the Applicable Time to the Closing Time and will furnish the Representative with copies of any such documents a reasonable amount
of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representative or counsel
for the Underwriters shall reasonably object.
(c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith
or incorporated by reference therein and documents incorporated or deemed incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Representative, without charge, a conformed copy of the Registration
Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery
of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Shares is (or, but for the
exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) Blue
Sky Qualifications. The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Shares for offering
and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representative may designate
and to maintain such qualifications in effect so long as required to complete the distribution of the Shares; provided, however, that
the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(f) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders
as soon as practicable an earning statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(g) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Shares in all material respects in the manner
specified in the Registration Statement, the General Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(h) Listing.
The Company will use its best efforts to effect and maintain the listing of the Common Stock (including the Shares) on the Nasdaq Stock
Market LLC.
(i) Restriction
on Sale of Securities.
(i) During
a period of 45 days from the date of the Prospectus, the Company will not, without the prior written consent of the Representative, (i) directly
or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file or confidentially submit any registration statement under the 1933 Act with
respect to any of the foregoing, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iii) publicly
announce an intention to effect any such swap, agreement or other transaction described in clauses (i) and (ii). The foregoing sentence
shall not apply to (A) the Shares to be sold hereunder; (B) any shares of Common Stock issued by the Company upon the exercise
of an option or warrant, settlement and/or vesting of any performance share unit or restricted stock unit or the conversion of a convertible
security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package and the Prospectus;
(C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of
the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus; (D) any shares of Common
Stock issued pursuant to any existing non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement,
the General Disclosure Package and the Prospectus; or (E) the filing by the Company of any registration statement on Form S-8
or a successor form thereto.
(ii) Notwithstanding
the foregoing, this Section 3(i) shall not apply in respect of an Exempt Issuance. “Exempt Issuance” means the issuance
of (a) shares of Common Stock, stock awards, restricted stock units, performance stock units or options to employees, officers or
directors of the Company pursuant to any equity incentive plan duly adopted for such purpose by a majority of the non-employee members
of the Board of Directors or a majority of the members of a committee of non- employee directors established for such purpose for services
rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Shares issued hereunder and/or other
securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement,
provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities or to extend the term of such securities, (c) the issuance
of up to 5% of the outstanding shares of capital stock, or securities convertible into, exercisable for, or which are otherwise exchangeable
for, Common Stock, immediately following the Closing Date, in acquisitions, strategic transactions of assets or acquisition of equity
of another entity or in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship
(including joint ventures, marketing or distribution arrangements, collaboration agreements, intellectual property license agreements,
or lending agreements or arrangements), provided that such recipients enter into a lock-up agreement with the Representative and (d) securities
issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided
that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights
that require or permit the filing of any registration statement in connection therewith within 60 days following the Closing Date, and
provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries,
an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company
additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
(j) Reporting
Requirements. The Company, during the period when a Prospectus relating to the Shares is (or, but for the exception afforded by Rule 172,
would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report the use of
proceeds from the issuance of the Shares as may be required under Rule 463 under the 1933 Act.
(k) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it will not
make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under
Rule 433; provided that the Representative will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule B-2
hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been
reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such free writing prospectus
consented to, or deemed consented to, by the Representative as an “issuer free writing prospectus,” as defined in Rule 433,
and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing
with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative
and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(l) Testing-the-Waters
Materials. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event
or development as a result of which such Written Testing-the-Waters Communication 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
existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement,
at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
SECTION 4. Payment
of Expenses.
(a) Expenses.
The Company hereby agrees to pay on each of the Closing Date and each Option Closing Date, if any, to the extent not paid at the Closing
Date, all expenses associated with the Offering or incident to the performance of the obligations of the Company under this Agreement,
including, but not limited to: (a) all filing fees and communication expenses relating to the registration of the Shares to be sold
in the Offering (including the Option Shares) with the Commission; (b) all FINRA Public Offering Filing System fees associated with
the review of the Offering by FINRA; (c) the fees and expenses incurred in connection with the listing of the Shares on the Nasdaq
Stock Market LLC and such other stock exchanges as the Company and the Representative together determine; (d) all fees, expenses
and disbursements relating to the registration or qualification of such Shares under the “blue sky” securities laws of such
states and other foreign jurisdictions as the Representative may reasonably designate (including, without limitation, all filing and registration
fees, and the fees and expenses of blue sky counsel); (e) the costs of all mailing and printing of the underwriting documents (including,
without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any Agreement Among Underwriters, Selected Dealers’
Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration Statements, Prospectuses and all amendments, supplements
and exhibits thereto and as many preliminary and final Prospectuses as the Representative may reasonably deem necessary; (f) the
costs and expenses of the Company’s public relations firm; (g) the costs of preparing, printing and delivering the Shares;
(h) the costs for “tombstones” and/or other commemorative items; (i) fees and expenses of the Transfer Agent for
the Shares (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company);
(j) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriters; (k) the
fees and expenses of the Company’s accountants; (l) the fees and expenses of the Company’s legal counsel and other agents
and representatives; (m) the Underwriters’ costs of mailing prospectuses to prospective investors; (n) the costs associated
with advertising the Offering in the national editions of the Wall Street Journal and New York Times after the Closing Date; (o) up
to $125,000 for the fees and expenses of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.; (p) the Company’s reasonable
“road show” expenses for the Offering; and (q) the costs for bound volumes of the public offering materials as well as
commemorative mementos and lucite tombstones, each of which the Company or its designee will provide within a reasonable time after the
Closing in such quantities as the Underwriters may reasonably request. The Underwriters may also deduct from the net proceeds of the Offering
payable to the Company on the Closing Date, or each Option Closing Date, if any, the expenses set forth herein to be paid by the Company
to the Underwriters.
(b) Termination
of Agreement. If this Agreement is terminated by the Representative in accordance with the provisions of Section 5, Section 9(a)(i),
Section 9(a)(iii) or Section 10 hereof, the Company shall reimburse the Underwriters for all of their reasonably documented
out-of-pocket expenses, including the reasonable and documented fees and disbursements of counsel for the Underwriters; provided that
if this Agreement is terminated by the Representative pursuant to Section 10 hereof, the Company will have no obligation to reimburse
any defaulting Underwriter.
SECTION 5. Conditions
of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company contained herein or in certificates of any officer of the Company or any of its Subsidiaries delivered pursuant
to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness
of Registration Statement. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective
and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto
has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been
issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated;
and the Company has complied with each request (if any) from the Commission for additional information to the reasonable satisfaction
of counsel to the Underwriters.
(b) Opinion
of Counsel for Company. At the Closing Time, the Representative shall have received the opinion and the negative assurance letter,
each dated the Closing Time, of Goodwin Procter LLP, counsel for the Company, together with the opinion of Hamilton, DeSanctis &
Cha, LLP, special counsel for the Company with respect to intellectual property matters, each in form and substance satisfactory to the
Representative.
(c) Opinion
of Counsel for Underwriters. At the Closing Time, the Representative shall have received the opinion, and negative assurance letter,
each dated the Closing Time, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, together with signed
or reproduced copies of such letters for each of the other Underwriters in form and substance satisfactory to the Representative.
(d) Officers’
Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of the
principal executive officer of the Company and of the principal financial officer of the Company, dated the Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company in this Agreement
are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing
or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have
been instituted or are pending or, to their knowledge, contemplated.
(e) Accountant’s
Comfort Letter. At the time of the execution of this Agreement, the Representative shall have received from the Accountant a letter,
dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration
Statement, the General Disclosure Package and the Prospectus.
(f) Bring-down
Comfort Letter. At the Closing Time, the Representative shall have received from the Accountant a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except
that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(g) Approval
of Listing. The Company shall have submitted a listing of additional shares notification form to Nasdaq Stock Market LLC with respect
to the Shares and shall have received no objection thereto from Nasdaq Stock Market LLC.
(h) No
Objection. FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(i) Lock-up
Agreements. At the date of this Agreement, the Representative shall have received an agreement substantially in the form of Exhibit A-1
hereto signed by all of the Company’s directors, officers and securityholders identified on Exhibit A-2 hereto (the
“Lock-up Agreements”). The Company agrees to enforce the restrictions on transfer set forth in Lock-up Agreements.
(j) Maintenance
of Rating. Since the execution of this Agreement, there shall not have been any decrease in or withdrawal of the rating of any securities
of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62)
of the 1934 Act) or any notice given of any intended or potential decrease in or withdrawal of any such rating or of a possible change
in any such rating that does not indicate the direction of the possible change.
(k) Conditions
to Purchase of Option Shares. In the event that the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Shares, the representations and warranties of the Company contained herein and the statements
in any certificates furnished by the Company and any of its Subsidiaries hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Representative shall have received:
(i) Officers’
Certificate. A certificate, dated such Date of Delivery, of the principal executive officer of the Company and of the principal financial
officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(d) hereof remains
true and correct as of such Date of Delivery.
(ii) Opinion
of Counsel for Company. If requested by the Representative, the opinion, and negative assurance letter, of Goodwin Procter LLP, counsel
for the Company, together with the opinion of Hamilton, DeSanctis & Cha, LLP, special counsel for the Company with respect to
intellectual property matters, each in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Shares to be purchased on such Date of Delivery and otherwise to the same effect as the opinions and negative assurance
letter required by Section 5(b) hereof.
(iii) Opinion
of Counsel for Underwriters. If requested by the Representative, the opinion, and negative assurance letter, of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, dated such Date of Delivery, relating to the Option Shares to be purchased
on such Date of Delivery and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(c) hereof.
(iv) Bring-down
Comfort Letter. If requested by the Representative, a letter from the Accountant, in form and substance satisfactory to the Representative
and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representative pursuant to
subsection (f) of this Section, except that the “specified date” in the letter furnished pursuant to this paragraph shall
be a date not more than three business days prior to such Date of Delivery.
(l) Additional
Documents. At the Closing Time and at each Date of Delivery (if any), counsel for the Underwriters shall have been furnished with
such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of
the Shares as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Shares
as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters.
(m) Termination
of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option Shares on a Date of Delivery which is after the Closing Time,
the obligations of the several Underwriters to purchase the relevant Option Shares, may be terminated by the Representative by notice
to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and except that Sections 1, 4, 6, 7, 8, 13, 14 and 15 shall
survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification
of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under
the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be
a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material
fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication,
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in 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 Shares (“Marketing
Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically),
or the omission or alleged omission in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters
Communication, the General Disclosure Package, the Prospectus (or any amendment or supplement thereto) or in any Marketing Materials of
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representative), reasonably
incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part
thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Underwriter Information.
(b) Indemnification
of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities (including, without limitation, reasonable and documented legal fees and other
expenses incurred in connection with any suit, action, or proceeding or any claim asserted, as such fees and expenses are incurred) that
arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any preliminary prospectus,
any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, any road show or any General Disclosure Package (including
any General Disclosure Package that has subsequently been amended), it being understood and agreed upon that the only such information
furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the concession
and reallowance figures appearing in the fifth paragraph under the caption “Underwriting” and the information contained in
the seventeenth and eighteenth paragraphs under the caption “Underwriting.”
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the
Representative and in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall
be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for the reasonable fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this Section 6 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (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 Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 of the Underwriters, on the other hand, in connection
with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Shares pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received by
the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate public offering price
of the Shares as set forth on the cover of the Prospectus.
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 or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement
or omission or alleged omission.
Notwithstanding the provisions
of this Section 7, 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 Shares underwritten by it and distributed to the public.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7,
each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act and each Underwriter’s Affiliates and selling agents 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 Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Closing Shares set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company or any of its Subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any
Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Shares.
SECTION 9. Termination
of Agreement.
(a) Termination.
The Representative may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in U.S. or international political, financial
or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative, impracticable or
inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Shares, or (iii) if trading
in any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq Stock Market LLC, or (iv) if
trading generally on the NYSE MKT or the New York Stock Exchange or in the Nasdaq Global Market has been suspended or materially limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or
by order of the Commission, FINRA or any other Governmental Entity, or (v) a material disruption has occurred in commercial banking
or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or
(vi) if a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 4, 6, 7, 8, 14, 15 and 16 shall survive such termination
and remain in full force and effect.
SECTION 10. Default
by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery to purchase
the Shares which it or they are obligated to purchase under this Agreement (the “Defaulted Shares”), the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted Shares in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed such arrangements within such 24-hour period, then:
(a) if
the number of Defaulted Shares does not exceed 10% of the number of Shares to be purchased on such date, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if
the number of Defaulted Shares exceeds 10% of the number of Shares to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell, the Option
Shares to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to
this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default
which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which
does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option Shares,
as the case may be, either the (i) Representative or (ii) the Company shall have the right to postpone Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration
Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter”
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (i) the time of transmission, if such notice or communication is delivered via
e-mail attachment at the email address set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City
time) on a day on which the Nasdaq Stock Market LLC is open for trading (“Trading Day”), (ii) the next Trading
Day after the time of transmission, if such notice or communication is delivered via e-mail attachment at the e-mail address as set forth
on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any
Trading Day, (iii) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service or (iv) upon actual receipt by the party to whom such notice is required to be given. The address for such notices
and communications shall be as set forth below:
if sent to the Representative
or any Underwriter, shall be delivered personally, by e-mail, or sent by a nationally recognized overnight courier service to:
Titan Partners Group LLC, a division
of American Capital Partners, LLC
4 World Trade Center, 29th Floor
New York, NY 10007
Attention: Adam Sands
Email: notices@titanpartnersgrp.com
with a copy to Underwriters’ counsel (which
shall not constitute notice) at:
Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.
919 Third Avenue
New York NY 10022
Attention: Eric Foster, Jeffrey Schultz
Email: efoster@mintz.com; jpschultz@mintz.com
if sent to the Company, shall be delivered personally,
by e-mail, or sent by a nationally recognized overnight courier service to:
Ocugen, Inc.
11 Great Valley Parkway
Malvern, Pennsylvania 19355
Attention: Shankar Musunuri
Email: shankar.musunuri@ocugen.com
with a copy to the Company counsel (which shall
not constitute notice) at:
Goodwin Procter LLP
One Commerce Square
2005 Market St, 32nd floor
Philadelphia, Pennsylvania 19103
Attention: Rachael Bushey; Jennifer
Porter
Email: RBushey@goodwinlaw.com; JPorter@goodwinlaw.com
SECTION 12. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Shares pursuant
to this Agreement, including the determination of the public offering price of the 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 of the Shares and the process leading thereto, each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, any of its Subsidiaries or their respective 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 of the Shares or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising
the Company or any of its Subsidiaries on other matters) and no Underwriter has any obligation to the Company with respect to the offering
of the Shares 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 of the Shares and the Company has consulted
its own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 13. Parties.
This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than
the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Shares
from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING
LAW. This agreement and any claim, controversy or dispute arising under or related to this agreement shall be governed by, and
construed in accordance with the laws of, the state of New York without regard to its choice of law provisions.
SECTION 15. Waiver
of Trial by Jury. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
SECTION 16. Consent
to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby shall be instituted in (i) the federal courts of the United States of America located in the City and County
of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough
of Manhattan (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 17. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. 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 19. Counterparts.
This Agreement may be executed in any number of counterparts (which may include counterparts delivered by any standard form of telecommunication),
each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same agreement. Counterparts
may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
SECTION 20. Effect
of Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
SECTION 21. Entire
Agreement. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter hereof.
SECTION 22. Recognition
of the U.S. Special Resolution Regimes. 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.
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.
[SIGNATURE PAGES FOLLOW]
| |
Very truly yours, |
| |
|
| |
OCUGEN, INC. |
| |
|
| |
By: |
/s/
Shankar Musunuri |
| |
|
Name: Shankar Musunuri, Ph.D., MBA |
| |
|
Title: Chairman, Chief Executive Officer, & Co- Founder |
| Accepted as of the date hereof |
|
| |
|
| Titan Partners Group LLC, |
|
| A Division of American Capital Partners, LLC |
|
| |
|
| By: |
/s/ Adam Sands |
|
| |
Name: Adam Sands |
|
| |
Title: Authorized Representative |
|
For themselves and as Representative of the other Underwriters named
in Schedule A hereto.
[Signature Page to Underwriting
Agreement]
SCHEDULE A
Closing Shares: 30,434,783
Option Shares: 4,565,217
Price to Public: $1.15
Underwriters’ Discount: $0.071875
| Name of Underwriter | |
Number of
Closing Shares | |
| Titan Partners Group LLC, a division of American Capital Partners, LLC | |
| 30,434,783 | |
| Total | |
| 30,434,783 | |
SCHEDULE B-1
Pricing Terms
1. The
Company is selling 30,434,783 shares of Common Stock.
2. The
Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 4,565,217 shares of Common
Stock.
3. The
public offering price per share for the Shares shall be $1.15.
SCHEDULE B-2
Free Writing Prospectuses
None
Exhibit A-1
FORM OF LOCK-UP AGREEMENT
Exhibit A-2
LIST OF LOCK-UP SIGNATORIES
Shankar Musunuri
Arun Upadhyay
Huma Qamar
Michael Breininger
Kristen M. Castillo
Prabhavathi Fernandes
Uday Kompella
Junge (John) Zhang
Marna C. Whittington
Form of Lock-up Agreement
Titan Partners Group LLC,
a division of American Capital Partners, LLC
4 World Trade Center, 29th Floor
New York, NY 10007
Re: Proposed Registered Follow-On Offering
by Ocugen, Inc.
Ladies and Gentlemen:
The
undersigned, a securityholder and/or officer and/or a director of Ocugen, Inc., a Delaware corporation (the “Company”),
understands that Titan Partners Group LLC, a division of American Capital Partners, LLC (“Titan”) proposes to
enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company relating to the proposed registered
follow-on offering (the “Offering”) of shares of the Company’s common stock, par value $0.01 per share (the “Common
Stock”). The undersigned acknowledges that Titan is relying on the representations and agreements of the undersigned contained
in this lock-up agreement in conducting the Offering and, at a subsequent date, in entering into the Underwriting Agreement and other
underwriting arrangements with the Company with respect to the Offering.
In recognition of the benefit
that the Offering will confer upon the undersigned as a securityholder and/or officer and/or a director of the Company, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees that, during the
period beginning on the date hereof and ending on the date that is 60 days from the date of the Underwriting Agreement (the “Lock-Up
Period”), the undersigned will not (and will cause any immediate family member not to), without the prior written consent of
Titan, which may withhold its consent in its sole discretion, directly or indirectly, (i) sell, offer to sell, contract to sell or lend,
effect any short sale or establish or increase a Put Equivalent Position (as defined in Rule 16a-1(h) under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)) or liquidate or decrease any Call Equivalent Position (as defined in Rule
16a-1(b) under the Exchange Act), pledge, hypothecate or grant any security interest in, or in any other way transfer or dispose of, any
Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, in each case whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively,
the “Lock-Up Securities”), (ii) make any demand for, or exercise any right with respect to the registration of any
of the Lock-Up Securities, or the filing of any registration statement, prospectus or prospectus supplement (or an amendment or supplement
thereto) in connection therewith, under the Securities Act of 1933, as amended, (iii) enter into any swap, hedge or any other agreement
or any transaction that transfers, in whole or in part, the economic consequence of ownership of the Lock-Up Securities, whether any such
swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (iv) publicly announce
the intention to do any of the foregoing.
Notwithstanding the foregoing,
and subject to the conditions below, the undersigned may transfer the Lock-Up Securities pursuant to clauses (i) through (iv) below without
the prior written consent of Titan, provided that (1) prior to any such transfer, Titan receives a signed lock-up agreement, substantially
in the form of this lock-up agreement, for the balance of the Lock-Up Period from each donee, trustee, distributee or transferee, as the
case may be, (2) any such transfer shall not involve a disposition for value, (3) in the case of clauses (i) and (ii) below, such transfers
are not required to be reported with the Securities and Exchange Commission under the Exchange Act, and (4) the undersigned does not otherwise
voluntarily effect any public filing or report regarding such transfers:
| (i) | as a bona fide gift or gifts; or |
| (ii) | to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned
(for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not
more remote than first cousin); or |
| (iii) | by will or intestate succession to the legal representative, heir, beneficiary or immediate family of
the undersigned upon the death of the undersigned. |
Furthermore, notwithstanding
the restrictions imposed by this letter agreement, the undersigned may (i) exercise an option to purchase Common Stock granted under any
equity incentive plan or stock purchase plan of the Company, provided that the Common Stock issued upon such exercise shall continue to
be subject to the restrictions on transfer set forth in this letter agreement, (ii) establish a trading plan pursuant to Rule 10b5-1 under
the Exchange Act (a “10b5-1 Trading Plan”) for the transfer of Common Stock, provided that such plan does not provide
for any transfers of Common Stock during the Lock-up Period and the entry into such plan is not publicly disclosed, including in any filing
under the Exchange Act, during the Lock-up Period, (iii) sell Common Stock pursuant to a 10b5-1 Trading Plan entered into prior to the
date hereof and provided to the Underwriters as of the date hereof; provided that such 10b5-1 Trading Plan shall not be amended to allow
for any transfers of Common Stock during the Lock-Up Period; and provided, further, that to the extent a public announcement or filing
under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding any such
sales, such announcement or filing shall include a statement to the effect that any sales were effected pursuant to such 10b5-1 Trading
Plan, (iv) transfer or dispose of Common Stock acquired on the open market following the Offering, provided that undersigned is not required
to, and does not voluntarily choose to, make a filing under the Exchange Act reporting a reduction in beneficial ownership of Common Stock,
(v) transfer or dispose of Common Stock pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction
made to all holders of the Common Stock involving a change of control of the Company (including, without limitation, entering into any
lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Common
Stock (or any security convertible into or exercisable or exchangeable for Common Stock) in connection with any such transaction, or vote
any securities in favor of any such transaction) provided that in the event that the tender offer, merger, consolidation or other such
similar transaction is not completed, the Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock)
owned by the undersigned shall remain subject to the restrictions contained in this Agreement; and (vi) transfer Common Stock (A) as forfeitures
to satisfy tax withholding obligations of the undersigned in connection with the vesting or exercise of equity awards by the undersigned
pursuant to the Company’s equity incentive, stock option, stock bonus or other stock plan or arrangement described in the Registration
Statement for the Offering, (B) pursuant to a net exercise or cashless exercise by the undersigned of outstanding equity awards pursuant
to the Company’s equity incentive, stock option, stock bonus or other stock plan or arrangement described in the Registration Statement
for the Offering, provided that any Common Stock acquired upon the net exercise or cashless exercise of equity awards described in this
clause (B) shall be subject to the restrictions set forth in this letter agreement, (C) by operation of law, including pursuant to a domestic
order or negotiated divorce settlement, or (D) that may be deemed to have occurred as a result of the conversion of the outstanding preferred
shares of the Company into shares of common stock or the exercise of warrants; provided that, in the case of a transfer pursuant to clause
(A) above, if the undersigned is required to, or voluntarily chooses to, make a filing under the Exchange Act reporting a reduction in
beneficial ownership of Common Stock during the Lock-up Period, the undersigned shall include a statement in such report to the effect
that the purpose of such transfer was to cover tax obligations of the undersigned in connection with such exercise; and further provided
that, in the case of a transfer pursuant to clause (B) above, that no public disclosure or filing under the Exchange Act by any party
to the transfer shall be made voluntarily, during the Lock-up Period; and further provided that any Common Stock acquired upon conversion
or exercise described in clause (D) shall be subject to the restrictions set forth in this letter agreement.
The undersigned further agrees
that the foregoing provisions shall be equally applicable to any Common Stock the undersigned may purchase or otherwise receive in the
Offering.
The undersigned also agrees
and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of
the Lock-Up Securities except in compliance with the foregoing restrictions.
With respect to the Offering
only, the undersigned waives any registration rights relating to registration under the Securities Act of the offer and sale of any shares
of Common Stock and/or 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, owned either of record or beneficially by the undersigned, including any rights to receive notice of the Offering.
The undersigned confirms that
the undersigned has not, and has no knowledge that any immediate family member has, directly or indirectly, taken any action designed
to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale of the Common Stock The undersigned will not, and will cause any immediate family member not to take, directly
or indirectly, any such action.
As used herein, “immediate
family” shall mean the spouse, domestic partner, lineal descendant, father, mother, brother, sister, or any other person with whom
the undersigned has a relationship by blood, marriage or adoption not more remote than first cousin.
The undersigned represents
and warrants that the undersigned has full power, capacity and authority to enter into this letter agreement. This letter agreement is
irrevocable and will be binding on the undersigned and the successors, heirs, personal representatives and assigns of the undersigned.
This lock-up agreement shall
be governed by and construed in accordance with the laws of the State of New York.
Whether or not the Offering
actually occurs depends on a number of factors, including market conditions. Any Offering will only be made pursuant to an Underwriting
Agreement, the terms of which are subject to negotiation between the Company and Titan.
This lock-up agreement shall
automatically terminate, and the undersigned shall be released from its obligations hereunder, upon the earliest to occur, if any, of
(i) the Company advising Titan in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed
with the Offering, (ii) the executed Underwriting Agreement being terminated prior to the closing of the Offering (other than the provisions
thereof that survive termination), and (iii) August 7, 2024, in the event that the Underwriting Agreement has not been executed by such
date.
[Signature Page Follows]
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Very truly yours, |
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Name of Securityholder/Director/Officer (Print exact name) |
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By: |
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Signature |
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If not signing in an individual capacity: |
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Name of Authorized Signatory (Print) |
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Title of Authorized Signatory (Print) |
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(indicate capacity of person signing if signing as custodian, trustee or on behalf of an entity) |
