Exhibit
10.1
ONCOCYTE
CORPORATION
EQUITY
DISTRIBUTION AGREEMENT
March
20, 2020
PIPER
SANDLER & CO.
U.S.
Bancorp Center
800
Nicollet Mall
Minneapolis,
Minnesota 55402
Ladies
and Gentlemen:
As
further set forth in this agreement (this “Agreement”), OncoCyte Corporation, a California corporation
(the “Company”), proposes to issue and sell from time to time through Piper Sandler & Co. (the “Agent”),
as sales agent, the Company’s common stock, no par value (the “Common Stock”) (such shares of
Common Stock to be sold pursuant to this Agreement, the “Shares”) on terms set forth herein. Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitation set forth in Section 2
of this Agreement on the number of Shares issued and sold under this Agreement shall be the sole responsibility of the Company,
and the Agent shall have no obligation in connection with such compliance.
The
Company hereby confirms its agreement with the Agent with respect to the sale of the Shares.
1.
Representations and Warranties of the Company.
(a)
The Company represents and warrants to, and agrees with, the Agent that as of the date of this Agreement, each Representation
Date, each date on which a Placement Notice (as defined in Section 2(a)(i) below) is given, and any date on which Shares are sold
hereunder as follows:
(i)
Registration Statement and Prospectus. The Company has filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Securities Act”), with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File
No. 333-231980), including a base prospectus, relating to certain securities, including the Common Stock, to be issued from time
to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with
the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the
“Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as
part of such registration statement specifically relating to the Shares (the “Prospectus Supplement”).
The Company has furnished to the Agent, for use by Agent, copies of the prospectus included as part of such registration statement,
as supplemented by the Prospectus Supplement, relating to the Shares. Except where the context otherwise requires, such registration
statement, as amended when it became effective, including all documents filed as part thereof or incorporated by reference therein,
and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to
Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) (a
“Rule 462(b) Registration Statement”) of the Securities Act, is herein called the “Registration
Statement.” The base prospectus, including all documents incorporated therein by reference, included in the Registration
Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement
have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with
any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act regulations (“Rule
433”), relating to the Shares, if any, that (i) is required to be filed with the Commission by the Company or (ii)
is exempt from filing pursuant to Rule 433(d)(5)(i), 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), is herein called
the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment
or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with
the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration
Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission
pursuant the Electronic Data Gathering Analysis and Retrieval System (“EDGAR”).
(ii)
Continuing Effectiveness of Registration Statement. The Registration Statement and any Rule 462(b) Registration Statement
have been declared effective by the Commission under the Securities Act. The Company has complied, to the Commission’s satisfaction,
with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been
instituted or are pending or, to the knowledge of the Company, contemplated or threatened by the Commission. The Company meets
the requirements for use of Form S-3 under the Securities Act. The sale of the Shares hereunder meets the requirements of General
Instruction I.B.1 of Form S-3.
(iii)
No Material Misstatements or Omissions. The Prospectus when filed complied, and as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration
Statement, the Prospectus and any post-effective amendments or supplements thereto, at the time it became effective or its date,
as applicable, and as of each Settlement Date (as defined in Section 2(a)(vii) below), complied in all material respects with
the Securities Act, and as of each effective date and each Settlement Date, did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, as amended or supplemented, as of its date, did not and, as of each of the Settlement Date, will
not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set
forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any
Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements
thereto, made in reliance upon and in conformity with information relating to the Agent furnished to the Company in writing by
the Agent expressly for use therein. There are no contracts or other documents required to be described in the Prospectus or to
be filed as exhibits to the Registration Statement which have not been described or filed as required.
(iv)
Eligible Issuer. The Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act)
as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering
of the Shares contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and
all “road shows” (as defined in Rule 433 under the Securities Act) related to the offering of the Shares contemplated
hereby is solely the property of the Company.
(v)
Emerging Growth Company. From the time of initial filing of the Registration Statement to the Commission through the date
hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the
Securities Act.
(vi)
Financial Statements. The historical financial statements (including the related notes and supporting schedules) to be
included or incorporated by reference, in the Registration Statement, and the Prospectus comply as to form in all material respects
with the applicable requirements of Regulation S-X under the Securities Act (“Regulation S-X”) and present
fairly, in all material respects, the financial condition, results of operations and cash flows of the entities purported to be
shown thereby at the dates and for the periods indicated and have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the periods involved. There are no financial statements
(historical or pro forma) that are required to be included in the Registration Statement or the Prospectus that are not so included
as required. The interactive data in eXtensible Business Reporting Language (“XBRL”) included or incorporated
by reference in the Registration Statement and the Prospectus fairly present the information called for in all material respects
and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(vii)
No Off-Balance Sheet Transactions. There are no transactions, arrangements and other relationships between and/or among
the Company, and/or, to the knowledge of the Company, 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), and are required
to be described in the Prospectus, which have not been described as required.
(viii)
Auditor Independence. OUM & Co. LLP, who have certified certain financial statements of the Company and its consolidated
subsidiaries (the “Subsidiaries”), whose report appears in the Registration Statement and the Prospectus,
are independent public accountants as required by the Securities Act and the Public Company Accounting Oversight Board.
(ix)
No Material Adverse Effect. The Company and each of its Subsidiaries (a complete list of the Subsidiaries is included as
Schedule 4 hereto) has been 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, and will be, 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 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”). The Company does not own or control, directly or indirectly, any corporation, association or other
entity other than the Subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2018 and Insight Genetics, Inc., except for Subsidiaries that in the aggregate would not constitute a “significant
subsidiary” (as defined in Rule 405 under the Securities Act). None of the Subsidiaries of the Company is a “significant
subsidiary” (as defined in Rule 405 under the Securities Act).
(x)
Capitalization. The Company has an authorized capitalization as set forth in each of the Registration Statement and the
Prospectus, and all of the issued and outstanding shares of the Company have been duly authorized and validly issued, are fully
paid and non-assessable, conform in all material respects to the description thereof contained in the Registration Statement and
the Prospectus and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right.
All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of the Company’s
capital stock have been duly authorized and validly issued, and conform in all material respects to the description thereof contained
in the Registration Statement and the Prospectus. All of the issued shares of capital stock or other ownership interest of each
Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or
claims as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xi)
Due Authorization, Valid Issuance and Non-Assessiblity of Shares. Except as disclosed in the Registration Statement or
the Prospectus, the Shares to be issued and sold by the Company to the Agent hereunder have been duly authorized and, upon payment
and delivery in accordance with this Agreement, will be validly issued, fully paid and non-assessable, will conform in all material
respects to the description thereof contained in the Registration Statement and the Prospectus, will be issued in compliance with
federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of first refusal and
similar rights.
(xii)
[Reserved]
(xiii)
Authority to Enter into this Agreement. The Company has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered
by the Company.
(xiv)
Non-Contravention. The issue and sale of the Shares, the execution, delivery and performance of this Agreement by the Company,
the consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Shares as described
under “Use of Proceeds” in the Registration Statement and the Prospectus will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of
the Company and its Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license,
lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject; (ii)
result in any violation of the provisions of the articles of association, charter or by-laws (or similar organizational documents)
of the Company or any of its Subsidiaries; or (iii) result in any violation of any statute or any judgment, order, decree, rule
or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any
of their properties or assets, except, with respect to clauses (i) and (iii), for such conflicts, breaches, violations, liens,
charges, encumbrances or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(xv)
No Consent or Approval Required. No consent, approval, authorization or order of, or filing, registration or qualification
with, any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their
properties or assets is required for the issue and sale of the Shares, the execution, delivery and performance of this Agreement
by the Company, the consummation of the transactions contemplated hereby, the application of the proceeds from the sale of the
Shares as described under “Use of Proceeds” in the Registration Statement and the Prospectus, except for (i) the registration
of the Shares under the Securities Act; (ii) such consents, approvals, authorizations, orders, filings, registrations or qualifications
as may be required under the Exchange Act, and applicable state or foreign securities laws and/or the bylaws and rules of the
Financial Industry Regulatory Authority (the “FINRA”) in connection with the sale of the Shares by the
Agent; and (iii) the inclusion of the Shares on the NYSE American (the “Exchange”).
(xvi)
Internal Accounting Controls. The Company and each of its Subsidiaries maintain internal accounting controls designed to
provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles in the United States, including, but not limited
to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of the
Company’s financial statements in conformity with generally accepted accounting principles in the United States and to maintain
accountability for its assets, (iii) access to the Company’s assets is permitted only in accordance with management’s
general or specific authorization, (iv) the recorded accountability for the Company’s assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any differences, and (v) the interactive data in XBRL
included or incorporated by reference in the Registration Statement and the Prospectus fairly present the information called for
in all material respects and are prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except
as disclosed in the Registration Statement or the Prospectus, as of the date of the most recent balance sheet of the Company and
its consolidated Subsidiaries reviewed by OUM & Co. LLP, there were no material weaknesses in the Company’s internal
controls.
(xvii)
Disclosure Controls. The Company and each of its Subsidiaries maintain disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) designed to ensure that the information required to be disclosed by the Company
and its Subsidiaries in the reports they file or submit under the Exchange Act is accumulated and communicated to management of
the Company and its Subsidiaries, including their respective principal executive officers and principal financial officers, as
appropriate, to allow timely decisions regarding required disclosure to be made, and such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were established.
(xviii)
Critical Accounting Policies. The section entitled “Critical Accounting Policies” incorporated by reference
in the Registration Statement and the Prospectus accurately describes in all material respects (i) the accounting policies that
the Company believes are the most important in the portrayal of the Company’s financial condition and results of operations
and that require management’s most difficult, subjective or complex judgments (“Critical Accounting Policies”);
(ii) the judgments and uncertainties affecting the application of Critical Accounting Policies; and (iii) the likelihood that
materially different amounts would be reported under different conditions or using different assumptions, and an explanation thereof.
(xix)
Sarbanes-Oxley Compliance. There is and has been no failure on the part of the Company or, to the knowledge of the Company,
any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith that are applicable to the Company or its directors
or officers in their capacities as directors or officers of the Company.
(xx)
Exceptions. Except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, since the
date of the latest audited financial statements included in the Registration Statement and the Prospectus, and, except as disclosed
in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries has (i) sustained any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, (ii) issued or granted any securities (other than pursuant to
employee benefit plans, qualified stock option plans or other equity compensation plans or arrangements existing on the date hereof
and disclosed in the Registration Statement and the Prospectus (the “Specified Equity Plans”)), (iii)
incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred
in the ordinary course of business, (iv) entered into any material transaction not in the ordinary course of business, or (v)
declared or paid any dividend on its share capital; and since such date, except as disclosed in the Registration Statement and
the Prospectus, there has not been any change in the share capital, long-term debt, net current assets or short-term debt of the
Company or any of its Subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting
the condition (financial or otherwise), results of operations, shareholders’ equity, properties, management, business or
prospects of the Company and its Subsidiaries taken as a whole.
(xxi)
Valid Title. The Company and each of its Subsidiaries have good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned by them, that are material to the business of the Company, in each
case free and clear of all liens, encumbrances and defects, except such liens, encumbrances and defects as do not materially affect
the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company
and its Subsidiaries. All assets held under lease by the Company and its Subsidiaries, that are material to the business of the
Company, are held by them under valid, subsisting and enforceable leases, with such exceptions as do not materially interfere
with the use made and proposed to be made of such assets by the Company and its Subsidiaries.
(xxii)
Intellectual Property. The Company and its Subsidiaries own or possess the valid right to use all (i) patents, patent applications,
trademarks, trademark registrations, service marks, service mark registrations, Internet domain name registrations, copyrights,
copyright registrations, licenses, trade secret rights (“Intellectual Property Rights”) and (ii) inventions,
software, works of authorships, trademarks, service marks, trade names, databases, formulae, know how, Internet domain names and
other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary confidential information,
systems, or procedures) (collectively, “Intellectual Property Assets”) necessary to conduct their respective
businesses as currently conducted, and as proposed to be conducted and described in the Prospectus, except as such failure to
own or possess such rights or assets would not reasonably be expected to, individually or in the aggregate, result in a Material
Adverse Effect. The Company and its Subsidiaries have not received any opinion from their legal counsel concluding that any activities
of their respective businesses infringe, misappropriate, or otherwise violate, valid and enforceable Intellectual Property Rights
of any other person, and have not received written notice of any challenge, which is still pending, by any other person to the
rights of the Company and its Subsidiaries with respect to any Intellectual Property Rights or Intellectual Property Assets owned
or used by the Company or its Subsidiaries. The Company and its Subsidiaries’ respective businesses as now conducted do
not give rise to any material infringement of, any material misappropriation of, or other material violation of, any valid and
enforceable Intellectual Property Rights of any other person. All licenses for the use of the Intellectual Property Rights described
in the Prospectus are valid, binding upon, and enforceable by or against the parties thereto in accordance to its terms. The Company
has complied in all material respects with, and is not in breach nor has received any asserted or threatened claim of material
breach of any Intellectual Property license, and the Company has no knowledge of any material breach or anticipated material breach
by any other person to any Intellectual Property license to which the Company is a party. No claim has been made and is currently
pending against the Company alleging the infringement by the Company of any patent, trademark, service mark, trade name, copyright,
trade secret, license in or other intellectual property right or franchise right of any person. The Company has taken all reasonable
steps to protect, maintain and safeguard its Intellectual Property Rights, including the execution of appropriate nondisclosure
and confidentiality agreements. The consummation of the transactions contemplated by this Agreement will not result in the loss
or impairment of or payment of any additional amounts with respect to, nor require the consent of any other person in respect
of, the Company’s right to own, use, or hold for use any of the Intellectual Property Rights as owned, used or held for
use in the conduct of the business as currently conducted. Notwithstanding anything to the contrary, Silicon Valley Bank, the
Company’s senior lender, has a security interest in all the Intellectual Property Assets.
(xxiii)
Health Care Authorizations. The Company has submitted and possesses, or qualifies for applicable exemptions to, such valid
and current registrations, listings, approvals, clearances, licenses, certificates, authorizations or permits and supplements
or amendments thereto issued or required by the appropriate state, federal or foreign regulatory agencies or bodies necessary
to conduct their business, including, without limitation, all such certificates, authorizations and permits required by the United
States Food and Drug Administration (the “FDA”), the United States Department of Health and Human Services
(“HHS”), the United States Centers for Medicare & Medicaid Services (“CMS”),
the European Medicines Agency (“EMEA”), Health Canada or any other state, federal or foreign agencies
or bodies engaged in the regulation of medical devices (including diagnostic products), drugs or biohazardous materials, and the
Company have not received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any
such license, certificate, authorization or permit, except for such registrations, listings, approvals, clearances, licenses,
certificates, authorizations or permits, the lack of which would not, individually or in the aggregate, have a Material Adverse
Effect.
(xxiv)
Clinical Trials. The studies, tests and preclinical and clinical trials conducted by or on behalf of, or sponsored by,
the Company, or in which the Company has participated, that are described in the Registration Statement and the Prospectus, or
the results of which are referred to in the Registration Statement and the Prospectus, were and, if still pending, are being conducted
in all material respects in accordance with 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 and all applicable
statutes, rules and regulations of the FDA, the EMEA, Health Canada and other comparable drug and medical device (including diagnostic
product) regulatory agencies outside of the United States to which they are subject; the descriptions of the results of such studies,
tests and trials contained in the Registration Statement and the Prospectus do not contain any misstatement of a material fact
or omit a material fact necessary to make such statements not misleading; the Company has no knowledge of any studies, tests or
trials not described in the Prospectus the results of which reasonably call into question in any material respect the results
of the studies, tests and trials described in the Registration Statement and the Prospectus; and the Company has not received
any notices or other correspondence from the FDA, EMEA, Health Canada or any other foreign, state or local governmental body exercising
comparable authority or any Institutional Review Board or comparable authority requiring or threatening the termination, suspension
or material modification of any studies, tests or preclinical or clinical trials conducted by or on behalf of, or sponsored by,
the Company or in which the Company has participated, and, to the Company’s knowledge, there are no reasonable grounds for
the same. Except as disclosed in the Registration Statement and the Prospectus, there has not been any violation of law or regulation
by the Company in its respective product development efforts, submissions or reports to any regulatory authority that could reasonably
be expected to require investigation, corrective action or enforcement action.
(xxv)
Compliance with Health Care Laws. The Company and, to the Company’s knowledge, its directors, employees and agents
(while acting in such capacity) are in material compliance with, all health care laws applicable to the Company, or any of its
products or activities, including, but not limited to, the federal Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the
Anti-Inducement Law (42 U.S.C. Section 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. Section 3729 et seq.), the administrative
False Claims Law (42 U.S.C. Section 1320a-7b(a)), the Stark law (42 U.S.C. Section 1395nn), the Health Insurance Portability and
Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) as amended by the Health Information Technology for Economic and
Clinical Health Act (42 U.S.C. Section 17921 et seq.), the exclusion laws (42 U.S.C. Section 1320a-7), the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 301 et seq.), the Controlled Substances Act (21 U.S.C. Section 801 et seq.), the Public Health
Service Act (42 U.S.C. Section 201 et seq.), the Clinical Laboratory Improvement Amendments of 1988 (42 U.S.C. Section 263a),
Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), and the Patient Protection
and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010, the regulations promulgated
pursuant to such laws, and any other state, federal or foreign law, accreditation standards, regulation, memorandum, opinion letter,
or other issuance which imposes requirements on the manufacturing, development, testing, labeling, advertising, marketing or distribution
of drugs and medical devices (including diagnostic products), kickbacks, patient or program charges, recordkeeping, claims process,
documentation requirements, medical necessity, referrals, the hiring of employees or acquisition of services or supplies from
those who have been excluded from government health care programs, quality, safety, privacy, security, licensure, accreditation
or any other aspect of providing health care, clinical laboratory or diagnostics products or services (collectively, “Health
Care Laws”). The Company has not received any notification, correspondence or any other written or oral communication,
including notification of any pending or threatened claim, suit, proceeding, hearing, enforcement, investigation, arbitration
or other action from any governmental authority, including, without limitation, the FDA, the EMEA, Health Canada, the United States
Federal Trade Commission, the United States Drug Enforcement Administration (“DEA”), CMS, HHS’s
Office of Inspector General, the United States Department of Justice and state Attorneys General or similar agencies of potential
or actual non-compliance by, or liability of, the Company under any Health Care Laws, except, with respect to any of the foregoing,
such as would not, individually or in the aggregate, have a Material Adverse Effect. To the Company’s knowledge, there are
no facts or circumstances that would reasonably be expected to give rise to material liability of the Company under any Health
Care Laws. The statements with respect to Health Care Laws and the Company’s compliance therewith included in the Registration
Statement and the Prospectus fairly summarize the matters therein described.
(xxvi)
Post-Market Reporting Obligations. The Company is complying in all material respects with all applicable regulatory post-market
reporting obligations, including, without limitation, the FDA’s adverse event reporting requirements at 21 CFR Parts 310,
314, 600, and 803, and, to the extent applicable, the respective counterparts thereof promulgated by governmental authorities
in countries outside the United States.
(xxvii)
No Shutdowns or Prohibitions. The Company has not had any product, clinical laboratory or manufacturing site (whether Company-owned
or that of a third party manufacturer for the Company’s products) subject to a governmental authority (including FDA) shutdown
or import or export prohibition, nor received any FDA Form 483 or other governmental authority notice of inspectional observations,
“warning letters,” “untitled letters,” requests to make changes to the Company’s products, processes
or operations, or similar correspondence or notice from the FDA or other governmental authority alleging or asserting material
noncompliance with any applicable Health Care Laws. To the Company’s knowledge, neither the FDA nor any other governmental
authority is considering such action.
(xxviii)
No Safety Notices. (i) Except as disclosed in the Registration Statement and the Prospectus, there have been no recalls,
field notifications, field corrections, market withdrawals or replacements, warnings, “dear doctor” letters, investigator
notices, safety alerts or other notice of action relating to an alleged lack of safety, efficacy, or regulatory compliance of
the Company’s products (“Safety Notices”) and (ii) to the Company’s knowledge, there are
no facts that would be reasonably likely to result in (x) a Safety Notice with respect to the Company’s products or services,
(y) a change in labeling of any the Company’s respective products or services, or (z) a termination or suspension of marketing
or testing of any the Company’s products or services.
(xxix)
Compliance with Laws. The Company holds, and is operating in compliance in all material respects with, all franchises,
grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority or self-regulatory
body required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits, easements, consents,
certifications and orders are valid and in full force and effect; and the Company has not received notice of any revocation or
modification of any such franchise, grant, authorization, license, permit, easement, consent, certification or order or has reason
to believe that any such franchise, grant, authorization, license, permit, easement, consent, certification or order will not
be renewed in the ordinary course; and the Company is in compliance in all material respects with all applicable federal, state,
local and foreign laws, regulations, orders and decrees.
(xxx)
Absence of Settlement Agreements or Undertakings. Except as disclosed in the Registration Statement and the Prospectus,
the Company is not a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or
similar agreements with or imposed by any governmental authority.
(xxxi)
Absence of Legal or Governmental Proceedings. Except as disclosed in the Registration Statement and the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is a party or of which any property
or assets of the Company or any of its Subsidiaries is the subject that, if determined adversely to the Company, would, in the
aggregate, reasonably be expected to have a Material Adverse Effect or would, in the aggregate, reasonably be expected to have
a Material Adverse Effect on the performance of this Agreement or the consummation of the transactions contemplated hereby; and
to the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.
(xxxii)
Material Contracts. There are no contracts or other documents required to be described in the Registration Statement or
filed as exhibits to the Registration Statement that are not described and filed as required. The statements made in the Registration
Statement and Prospectus, insofar as they purport to constitute summaries of the terms of the contracts and other documents described
and filed, constitute accurate summaries of the terms of such contracts and documents in all material respects. Except as disclosed
in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries has knowledge that any other
party to any such contract or other document has any intention not to render full performance as contemplated by the terms thereof.
(xxxiii)
Insurance. The Company and each of its Subsidiaries maintain insurance from nationally recognized, in the applicable country,
insurers in such amounts and covering such risks as is commercially reasonable in accordance with customary practices for companies
engaged in similar businesses and similar industries for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of
the Company and its Subsidiaries are in full force and effect; the Company and each of its Subsidiaries are in compliance with
the terms of such policies in all material respects; and neither the Company nor any of its Subsidiaries has received written
notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to
be made in order to continue such insurance; there are no material claims by the Company or any of its Subsidiaries under any
such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not reasonably be expected to have a Material Adverse Effect.
(xxxiv)
Related Party Disclosure. No relationship, direct or indirect, exists between or among the Company, on the one hand, and
the directors, officers, shareholders, customers or suppliers of the Company, on the other hand, that is required to be described
in the Registration Statement or the Prospectus which is not so described, or will not be described, at such time and in such
filing as required by Commission rules.
(xxxv)
No Labor Dispute. No labor disturbance by or dispute with the employees of the Company or any of its Subsidiaries exists
or, to the knowledge of the Company, is imminent that could reasonably be expected to have a Material Adverse Effect.
(xxxvi)
No Default. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries
(i) is in violation of its articles of association, charter or by-laws (or similar organizational documents), (ii) is 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, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement,
license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets
is subject, or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the
case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(xxxvii)
Environmental Laws. Except as disclosed in the Registration Statement and the Prospectus, the Company and each of its Subsidiaries
(i) are, and at all times prior hereto were, in compliance in all material respects with all laws, regulations, ordinances, rules,
orders, judgments, decrees, permits or other legal requirements of any governmental authority, including without limitation any
international, foreign, national, state, provincial, regional, or local authority, relating to pollution, the protection of human
health or safety, the environment, or natural resources, or to use, handling, storage, manufacturing, transportation, treatment,
discharge, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying
with all material permits and authorizations and approvals required by Environmental Laws to conduct their respective businesses,
and (ii) have not received written notice or otherwise have knowledge of any actual or alleged violation of Environmental Laws,
or of any actual or potential liability for or other obligation concerning the presence, disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants. Except as described in the Registration Statement and the Prospectus, (x) there
are no proceedings that are pending, or to the Company’s knowledge, threatened, against the Company or any of its Subsidiaries
under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding which it is
reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its Subsidiaries are not aware
of any issues regarding compliance with Environmental Laws, including any pending or proposed Environmental Laws, or liabilities
or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants,
that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the
Company and its Subsidiaries, and (z) none of the Company and its Subsidiaries anticipates material capital expenditures relating
to Environmental Laws.
(xxxviii)
Taxes. The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns required to
be filed through the date hereof, subject to permitted extensions, and have paid all taxes due and no tax deficiency has been
determined adversely to the Company or any of its Subsidiaries, nor does the Company have any knowledge of any tax deficiencies
that have been, or would reasonably be expected to be asserted against the Company, that would, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xxxix)
ERISA Compliance. (i) Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”)) for which the Company or any member of its “Controlled
Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section
414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each a
“Plan”) has been maintained in compliance in all material respects with its terms and with the requirements
of all applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant
to a statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur that would result
in a material loss to the Company, (B) no “accumulated funding deficiency” (within the meaning of Section 302 of ERISA
or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (C) the fair market value
of the assets under each Plan that is required to be funded exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan), and (D) neither the Company or any member of its Controlled Group
has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums
to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer
plan”, within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, to the Company’s knowledge, whether by action or by failure
to act, which would reasonably be expected to cause the loss of such qualification.
(xl)
Accuracy of Statistical and Market Data. The statistical and market-related data included in the Registration Statement
and the Prospectus and the consolidated financial statements of the Company and its Subsidiaries included or incorporated by reference
in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable
in all material respects.
(xli)
Not an Investment Company. Neither the Company nor any of its Subsidiaries is, and as of the applicable Settlement Date
and, after giving effect to the offer and sale of the Shares and the application of the proceeds therefrom as described under
“Use of Proceeds” in the Registration Statement and the Prospectus, none of them will be, (i) an “investment
company” or a company “controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the
Commission thereunder, or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment
Company Act).
(xlii)
Accuracy of Certain Summaries and Statements. The statements set forth or incorporated by reference, as applicable, in
each of the Registration Statement and the Prospectus under the captions “Description of Capital Stock,” and in the
Company’s Annual Report on Form 10-K for the year ended December 31, 2018 under the captions “Legal Proceedings”
and “Certain Relationships and Related Transactions, and Director Independence”, insofar as they purport to summarize
the provisions of the laws and documents referred to therein, are accurate summaries in all material respects.
(xliii)
Registration Rights. Except as disclosed in the Registration Statement and the Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person. There are
no contracts, agreements or understandings to require the Company to include any such securities in the securities proposed to
be offered pursuant to this Agreement.
(xliv)
No Other Brokers. Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a valid claim against any of them or the Agent for a brokerage
commission, finder’s fee or like payment in connection with the offering and sale of the Shares.
(xlv)
No Integration. The Company has not sold or issued any securities that would be integrated with the offering of the Shares
contemplated by this Agreement pursuant to the Securities Act or the interpretations thereof by the Commission.
(xlvi)
Absence of Stabilization or Manipulation. The Company and, to the Company’s knowledge, its affiliates have not taken,
directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Shares.
(xlvii)
Exchange Act Registration and Listing of the Common Stock. The shares of Common Stock are registered pursuant to Section
12(b) of the Exchange Act and listed on the Exchange; the Company has taken no action designed to, or reasonably likely to have
the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the
Exchange, nor has the Company received any notification that the Commission or FINRA is contemplating terminating such registration
or listing.
(xlviii)
Offering Material. The Company has not distributed and prior to any Settlement Date, will not distribute any offering material
in connection with any Placement (as defined in Section 2(a)(i) below), other than any Preliminary Prospectus, the Prospectus,
and any Permitted Free Writing Prospectus to which the Agent has consented.
(xlix)
Compliance with Labor Laws. Neither the Company nor any Subsidiary is in violation of or has received notice of any violation
with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable
federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property
is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(l)
No Unlawful Payments. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any director,
officer, agent, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries, has (i)
used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, the Organization for Economic
Co-operation and Development Convention on Bribery of Foreign Public Officials in International Business Transactions, and the
rules and regulations thereunder and any other similar foreign or domestic law or regulation; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment. The Company has instituted and maintains policies and procedures
designed to ensure continued compliance with the laws and regulations referenced in clause (iii) of this paragraph.
(li)
Anti-Money Laundering Compliance. 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 applicable related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the
Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(lii)
OFAC Compliance. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to
any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(liii)
Not a Passive Foreign Investment Company. Subject to the qualifications and assumptions set forth in the Registration Statement,
the Company is not, and upon the sale of the Shares contemplated by this Agreement does not expect to become, a “passive
foreign investment company” (as defined in Section 1297 of the Code, and the regulations promulgated thereunder).
(liv)
No Taxes or Fees Due Upon Issuance. No stamp, issue, registration, documentary, transfer or other similar taxes and duties,
including interest and penalties, are payable on or in connection with the issuance and sale of the Shares by the Company or the
execution and delivery of this Agreement.
(lv)
No Immunity. Neither the Company nor any Subsidiary, nor any of their respective properties or assets, has any immunity
from the jurisdiction of any court or from any legal process (whether through service or notice, attachment to prior judgment,
attachment in aid of execution or otherwise) under the laws of any jurisdiction in which it is organized, headquartered or doing
business.
(lvi)
No Legal, Accounting or Tax Advice. The Company has not relied upon the Agent or legal counsel for the Agent for any legal,
tax or accounting advice in connection with the offering and sale of the Shares.
(lvii)
Certificate as Representation and Warranty. Any certificate signed by any officer of the Company and delivered to the Agent
or the Agent’s counsel in connection with the offering of the Shares shall be deemed a representation and warranty by the
Company to Agent as to the matters covered thereby.
2.
Purchase, Sale and Delivery of Shares.
(a)
At-the-Market Sales. On the basis of the representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell through the Agent as sales agent, and the Agent agrees
to use its commercially reasonable efforts to sell for and on behalf of the Company, the Shares on the following terms and conditions;
provided, however, that any obligation of the Agent to use such commercially reasonable efforts shall be subject
to the continuing accuracy of the representations and warranties of the Company herein, the performance by the Company of its
covenants and obligations hereunder and the continuing satisfaction of the additional conditions specified in Section 4 of this
Agreement. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling
Shares, and (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell
Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal
trading and sales practices to sell such Shares as required under this Section 2.
(i)
Each time that the Company wishes to issue and sell the Shares hereunder (each, a “Placement”), it will
notify the Agent by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters in accordance with which it desires the Shares to be sold, which shall at a minimum include the number
of Shares to be issued, the time period during which sales are requested to be made, any limitation on the number of Shares that
may be sold in any one Trading Day (as defined below) and any minimum price below which sales may not be made, a form of which
containing such minimum sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall originate
from any of the individuals from the Company set forth on Schedule 2 (with a copy to each of the other individuals from
the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule
2, as such Schedule 2 may be amended from time to time. The Placement Notice shall be effective upon receipt by the
Agent unless and until (i) in accordance with the notice requirements set forth in Section 2(a)(iii) of this Agreement, the Agent
declines to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Shares have
been sold, (iii) the Company suspends or terminates the Placement Notice in accordance with the notice requirements set forth
in Section 2(a)(iii) below, (iv) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier
dated Placement Notice, or (v) this Agreement has been terminated under the provisions of Section 7. The amount of any commission
or other compensation to be paid by the Company to the Agent in connection with the sale of the Shares shall be calculated in
accordance with the terms set forth in Section 2(a)(v) below. It is expressly acknowledged and agreed that neither the Company
nor the Agent will have any obligation whatsoever with respect to a Placement or any Shares unless and until the Company delivers
a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth above, and
then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the
terms of the Placement Notice, the terms of the Placement Notice will control. For the purposes hereof, “Trading Day”
means any day on which the Company’s Common Stock is purchased and sold on the principal market on which the Common
Stock is listed or quoted.
(ii)
The Shares are to be sold by the Agent on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any
day that is a trading day for the Exchange (other than a day on which the Exchange is scheduled to close prior to its regular
weekday closing time). The gross sales price of the Shares sold under this Section 2(a) shall be the market price for the Company’s
Common Stock sold by the Agent under this Section 2(a) at the time of such sale.
(iii)
Notwithstanding the foregoing, the Company may instruct the Agent by telephone (confirmed promptly by email) not to sell the Shares
if such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company
shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its commercially reasonable efforts
to sell, any Shares at a price lower than the minimum price therefor designated from time to time by the Company’s Board
of Directors (or an authorized committee thereof) and notified to the Agent in writing. In addition, the Company or the Agent
may, upon notice to the other party hereto by telephone (confirmed promptly by email), suspend the offering of the Shares, whereupon
the Agent shall so suspend the offering of Shares until further notice is provided to the other party to the contrary; provided,
however, that such suspension or termination shall not affect or impair the parties’ respective obligations with
respect to the Shares sold hereunder prior to the giving of such notice. Notwithstanding any other provision of this Agreement,
during any period in which the Company is in possession of material non-public information, the Company and the Agent agree that
(i) no sale of Shares will take place, (ii) the Company shall not request the sale of any Shares, and (iii) the Agent shall not
be obligated to sell or offer to sell any Shares.
(iv)
Subject to the terms of the Placement Notice, the Agent may sell the Shares by any method permitted by law deemed to be an “at
the market offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on or through
an exchange. Subject to the terms of any Placement Notice, the Agent may also sell Shares in negotiated transactions at market
prices prevailing at the time of sale or at prices related to such prevailing market prices and/or any other method permitted
by law, subject to the prior written consent of the Company.
(v)
The compensation to the Agent for sales of the Shares, as an agent of the Company, shall be 3.0% of the gross sales price of the
Shares sold pursuant to this Section 2(a), payable in cash (the “Commission”); provided that
the combined Commission and reimbursement of the Agent for the out-of-pocket reasonable fees and disbursements of Agent’s
counsel pursuant to Section 3(g), shall not exceed 8.0% of the gross sales price of the Shares. The remaining proceeds, after
further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales,
and reimbursement of expenses that the Agent may be entitled to pursuant to Section 3(g), shall constitute the net proceeds to
the Company for such Shares (the “Net Proceeds”).
(vi)
The Agent will provide written confirmation to the Company (including by email correspondence to each of the individuals of the
Company set forth on Schedule 2), no later than the opening of the Trading Day immediately following the Trading Day on
which it has made sales of Shares hereunder, setting forth the number of Shares sold on such day, the volume-weighted average
price of the Shares sold, and the Net Proceeds payable to the Company.
(vii)
All Shares sold pursuant to this Section 2(a) will be delivered by the Company to the Agent for the account of the Agent, against
payment of the Net Proceeds therefor, by wire transfer of same-day funds payable to the order of the Company at the offices of
Piper Sandler & Co., U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota, or such other location as may be mutually
acceptable, at 9:00 a.m. Central Time on the second full business day following the date on which such Shares are sold, or at
such other time and date as Agent and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, each such time
and date of delivery being herein referred to as a “Settlement Date.” If the Agent so elects, delivery
of the Shares may be made by credit through full fast transfer to an account or accounts at The Depository Trust Company designated
by the Agent. On each Settlement Date, the Agent will deliver the Net Proceeds in same day funds to an account designated by the
Company on, or prior to, such Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to timely deliver duly authorized Shares on a Settlement Date, the Company agrees that in addition
to and in no way limiting the rights and obligations set forth in Section 5 hereto, it will (i) hold the Agent harmless against
any loss, claim, damage, or expense (including reasonable and documented legal fees and expenses), as incurred, arising out of
or in connection with such default by the Company, (ii) reimburse the Agent for any losses incurred by the Agent attributable,
directly or indirectly, to such default and (iii) pay to the Agent any commission or other compensation to which the Agent would
otherwise have been entitled absent such default.
(b)
Maximum Amount. Under no circumstances shall the aggregate number or aggregate value of the Shares sold pursuant to this
Agreement exceed: (i) the aggregate number and aggregate dollar amount of shares of Common Stock available for issuance under
the currently effective Registration Statement, (ii) the aggregate number of authorized but unissued shares of Common Stock that
are available for issuance under the Company’s certificate of incorporation or certificate of designation, (iii) the aggregate
dollar amount of shares of Common Stock permitted to be sold under the Company’s effective Registration Statement (including
any limit set forth in General Instruction I.B.6 thereof, if applicable) or (iv) the aggregate number of aggregate dollar amount
of shares of Common Stock for which the Company has filed any Prospectus Supplement in connection with the Shares (the lesser
of (i), (ii), (iii) and (iv) (the “Maximum Amount”).
(c)
No Association or Partnership. Nothing herein contained shall constitute the Agent an unincorporated association or partner
with the Company.
(d)
Duration. Under no circumstances shall any Shares be sold pursuant to this Agreement after the date which is three years
after the Registration Statement is first declared effective by the Commission.
(e)
Market Transactions by Agent. The Company acknowledges and agrees that the Agent has informed the Company that the Agent may,
to the extent permitted under the Securities Act, the Exchange Act and this Agreement, purchase and sell shares of Common Stock
for its own account while this Agreement is in effect, provided, that (i) no sale for its own account shall take place
while a Placement Notice is in effect (except to the extent the Agent may engage in sales of Shares purchased or deemed purchased
from the Company as a “riskless principal” or in a similar capacity) and (ii) the Company shall not be deemed to have
authorized or consented to any such purchases or sales by the Agent. The Company consents to the Agent trading in the Common Stock
for the account of any of its clients at the same time as sales of the Shares occur pursuant to this Agreement.
3.
Covenants of the Company. The Company covenants and agrees with the Agent as follows:
(a)
Amendments to Registration Statement and Prospectus. After the date of this Agreement and during any period in which a
Prospectus relating to any Shares is required to be delivered by the Agent under the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company agrees that it will: (i) notify
the Agent promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated
by reference or amendments not related to the Shares, has been filed with the Commission and/or has become effective or any subsequent
supplement to the Prospectus related to the Shares has been filed and of any request by the Commission for any amendment or supplement
to the Registration Statement (insofar as it relates to the transactions contemplated hereby) or Prospectus or for additional
information; (ii) prepare and file with the Commission, promptly upon the Agent’s request, any amendments or supplements
to the Registration Statement or Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable in connection
with the sale of the Shares by the Agent (provided, however, that the failure of the Agent to make such request shall not
relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations
and warranties made by the Company in this Agreement); (iii) not file any amendment or supplement to the Registration Statement
or Prospectus, other than documents incorporated by reference, relating to the Shares or a security convertible into the Shares
unless a copy thereof has been submitted to the Agent within a reasonable period of time before the filing and the Agent has not
reasonably objected thereto (provided, however, that (A) the failure of the Agent to make such objection shall not relieve
the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties
made by the Company in this Agreement), (B) the Company has no obligation to provide the Agent any advance copy of such filing
or to provide the Agent an opportunity to object to such filing if the filing does not name the Agent or does not relate to a
Placement or other transaction contemplated hereunder, and (C) the only remedy that the Agent shall have with respect to the failure
by the Company to provide the Agent with such copy or the filing of such amendment or supplement despite the Agent’s objection
shall be to cease making sales under this Agreement); (iv) furnish to the Agent at the time of filing thereof a copy of any document
that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents
available via EDGAR; and (iv) cause each amendment or supplement to the Prospectus, other than documents incorporated by reference,
to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act.
(b)
Stop Order. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the issuance
or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceeding for any such purpose, and it will promptly use its commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such a stop order should be issued.
(c)
Continuing Amendments. During any period in which a Prospectus relating to the Shares is required to be delivered by the
Agent under the Securities Act with respect to any Placement or pending sale of the Shares, (including in circumstances where
such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all
reports (taking into account any extensions available under the Exchange Act) and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of
or under the Exchange Act. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement
the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Agent to suspend
the offering of Shares during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus
(at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d)
Qualification of the Shares. The Company shall take or cause to be taken all necessary action to qualify the Shares for
sale under the securities laws of such jurisdictions as Agent reasonably designates and to continue such qualifications in effect
so long as required for the distribution of the Shares, except that the Company shall not be required in connection therewith
to qualify as a foreign corporation or to execute a general consent to service of process in any state. The Company shall promptly
advise the Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(e)
Copies of Registration Statement and Prospectus. The Company will furnish to the Agent and counsel for the Agent copies
of the Registration Statement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Agent may from time to time reasonably request, provided that the Company’s obligation to
provide such copies shall not apply to any filing available via EDGAR.
(f)
Section 11(a). The Company will make generally available to its security holders as soon as practicable an earnings statement
(which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 promulgated thereunder.
(g)
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated,
will pay or cause to be paid (i) all expenses (including stock or transfer taxes and stamp or similar duties allocated to the
respective transferees) incurred in connection with the registration, issue, sale and delivery of the Shares, (ii) all expenses
and fees (including, without limitation, fees and expenses of the Company’s accountants and counsel) in connection with
the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein
and all amendments, schedules, and exhibits thereto), the Shares, the Prospectus and any amendment thereof or supplement thereto,
and the producing, word-processing, printing, delivery, and shipping of this Agreement and other underwriting documents or closing
documents, including Blue Sky Memoranda (covering the states and other applicable jurisdictions) and including the cost to furnish
copies of each thereof to the Agent, (iii) all filing fees, (iv) all reasonable fees and disbursements of the Agent’s counsel
incurred in connection with the qualification of the Shares for offering and sale by the Agent or by dealers under the securities
or blue sky laws of the states and other jurisdictions which Agent shall designate, (v) the fees and expenses of any transfer
agent or registrar, (vi) the filing fees and reasonable fees and disbursements of Agent’s counsel incident to any required
review and approval by FINRA of the terms of the sale of the Shares, (vii) listing fees, if any, (viii) the cost and expenses
of the Company relating to investor presentations or any “roadshow” undertaken in connection with marketing of the
Shares, and (ix) all other reasonable costs and expenses incident to the performance of its obligations hereunder that are not
otherwise specifically provided for herein. In addition to (iv) and (vi) above, the Company shall reimburse the Agent for the
out of pocket reasonable fees and disbursements of the Agent’s counsel actually incurred in an amount which, taken together
with the fees and disbursements of Agent’s counsel in an amount not to exceed $50,000.
(h)
Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares in the manner described in the Prospectus.
(i)
Restrictions on Future Sales. During the term of this Agreement, the Company will not, offer for sale, sell, contract to
sell, pledge, grant any option for the sale of, enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition of Common Stock (whether by actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate, or otherwise issue or dispose of, directly or indirectly (or publicly disclose
the intention to make any such offer, sale, pledge, grant, issuance or other disposition), any Common Stock or any securities
convertible into or exchangeable for, or any options or rights to purchase or acquire, Common Stock, or permit the registration
under the Securities Act of any Common Stock, such securities, options or rights, except for: (i) the registration of the Shares
and the sales through the Agent pursuant to this Agreement, (ii) the registration and sales of shares through any dividend reinvestment
and stock purchase plan of the Company, (iii) sales of shares of restricted stock, restricted stock units and options granted
pursuant to employee benefit plans existing as of the date hereof, and the Common Stock issuable upon the exercise of such outstanding
options or vesting of such restricted stock units and (iv) the issuance of shares pursuant to the exercise of warrants, in the
case of each of (ii), (iii) and (iv), without giving the Agent at least two business days’ prior written notice specifying
the nature of the proposed sale and the date of such proposed sale, so as to permit the Agent to suspend activity under this Agreement
for such period of time as requested by the Company.
(j)
No Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed
to, or which might reasonably be expected to cause or result in, or which constitutes: (i) the stabilization or manipulation of
the price of the Common Stock or any other security of the Company to facilitate the sale or resale of the Shares, (ii) a violation
of Regulation M. The Company shall notify the Agent of any violation of Regulation M by the Company or any of its Subsidiaries
or any of their respective officers or directors promptly after the Company has received notice or obtained knowledge of any such
violation. The Company shall not invest in futures contracts, options on futures contracts or options on commodities, unless the
Company is exempt from the registration requirements of the Commodity Exchange Act, as amended (the “Commodity Act”),
or otherwise complies with the Commodity Act. The Company will not engage in any activities bearing on the Commodity Act, unless
such activities are exempt from the Commodity Act or otherwise comply with the Commodity Act.
(k)
No Other Broker. The Company will not incur any liability for any finder’s or broker’s fee or agent’s
commission in connection with the execution and delivery of this Agreement, or the consummation of the transactions contemplated
hereby.
(l)
Timely Securities Act and Exchange Act Reports. During any prospectus delivery period, the Company will use its commercially
reasonable efforts to file on a timely basis with the Commission such periodic and current reports as required by the Securities
Act and the Exchange Act.
(m)
Internal Controls. The Company and its Subsidiaries will maintain such controls and other procedures, including without
limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are
designed to ensure, at the reasonable assurance level, that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified
in the Commission’s rules and forms, including without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and its principal financial officer, or persons performing
similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information
relating to the Company, including its Subsidiaries, is made known to them by others within those entities.
(n)
Permitted Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior written consent
of the Agent, and the Agent severally represents and agrees that, unless it obtains the prior written consent of the Company,
it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,”
as defined in Rule 433 under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405 under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented
to by the Company and the Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer
free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable
to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(o)
Representation Date and Opinions of Counsel. Prior to the date of the first Placement Notice, and thereafter during the
term of this Agreement, each time the Company (A) files an amendment to the Registration Statement or Prospectus (other than relating
solely to the offering of securities other than the Shares), (B) files an annual report on Form 10-K under the Exchange Act or
files its quarterly reports on Form 10-Q under the Exchange Act; and (C) files a report on Form 8-K containing amended financial
statements (other than an earnings release) under the Exchange Act, (each of the dates in (A), (B) and (C) are referred to herein
as a “Representation Date”), the Company shall cause:
(i)
Ellenoff Grossman & Schole LLP, counsel for the Company, to furnish to the Agent the opinion and negative assurance letter
of such counsel, dated as of such date and addressed to Agent, in form and substance reasonably satisfactory to the Agent; provided
however, only a negative assurance letter of such counsel shall be required for each subsequent Representation Date.
(ii)
Thompson Welch Soroko & Gilbert LLP, counsel for the Company, to furnish to the Agent the opinion of such counsel, dated as
of such date and addressed to Agent, in form and substance reasonably satisfactory to the Agent; provided, however,
no negative assurance letter of such counsel shall be required.
(iii)
Ballard Spahr, the Company’s intellectual property and patent counsel for the Company, to furnish to the Agent the opinion
of such counsel, dated as of such date and addressed to Agent, in form and substance reasonably satisfactory to the Agent; provided
however, the opinion of counsel shall only be required for the first Representation Date.
Notwithstanding
the foregoing, the requirement to provide counsel opinions, comfort letters and certificates under this Section 3(o) shall be
waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall continue until
the date the Company delivers a Placement Notice to the Agent. Notwithstanding the foregoing, if the Company subsequently decides
to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with opinions
under this Section 3(o), then before the Agent sells any Shares pursuant to Section 2(a), the Company shall cause the opinions
(including the opinion pursuant to Section 3(o) if not delivered on the date of the prior Form 10-K), comfort letter, certificates
and documents that would be delivered on a Representation Date to be delivered.
(p)
Representation Date and Comfort Letter. Prior to the date of the first Placement Notice and thereafter during the term
of this Agreement, on each Representation Date to which a waiver pursuant to Section 3(o) does not apply, the Company shall cause
OUM & Co. LLP, or other independent accountants satisfactory to the Agent (the “Accountants”), to
deliver to the Agent a letter, dated as of such date and addressed to Agent, confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualifications
of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating the conclusions and findings of said firm with
respect to the financial information and other matters covered by its letter in form and substance satisfactory to the Agent of
the same tenor as the first such letter received hereunder.
(q)
Representation Date and Representation Certificate. Prior to the date of the First Placement Notice and thereafter during
the term of this Agreement, on each Representation Date to which a waiver pursuant to Section 3(o) does not apply, the Company
shall furnish to the Agent a certificate (the “Representation Certificate”), substantially in the form
of Schedule 3 and dated as of such date, addressed to the Agent and signed by the chief executive officer and by the chief
financial officer of the Company.
(r)
Disclosure of Shares Sold. The Company shall disclose in its quarterly reports on Form 10-Q and in its annual report on
Form 10-K the number of the Shares sold through the Agent under this Agreement, the net proceeds to the Company and the compensation
paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter.
(s)
Continued Listing of Shares. The Company shall use its commercially reasonable efforts to maintain the listing of the Common
Stock on the Exchange.
(t)
Notice of Changes. At any time during the term of this Agreement, as amended or supplemented from time to time, the Company
shall advise the Agent as soon as practicable after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Agent pursuant to this
Section 3.
(u)
Maximum Amount. The Company will not instruct the Agent to sell or otherwise attempt to sell Shares in excess of the Maximum
Amount.
4.
Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy, as of
the Effective Time, each Representation Date and each Settlement Date (in each case, as if made at such date) of and compliance
with all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its
obligations hereunder and (iii) the following additional conditions:
(a)
Continuing Amendments; No Stop Order. If filing of the Prospectus, or any amendment or supplement thereto, or any Permitted
Free Writing Prospectus, is required under the Securities Act, the Company shall have filed the Prospectus (or such amendment
or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required
(without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall be effective; no stop order suspending the
effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof,
nor suspending or preventing the use of the Prospectus shall have been issued; to the knowledge of the Company or the Agent, no
proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement, the Prospectus or otherwise) shall have been complied with to the Agent’s
satisfaction.
(b)
Absence of Certain Events. None of the following events shall have occurred and be continuing: (i) receipt by the Company
or any of its Subsidiaries of any request for additional information from the Commission or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement, the response to which would require any post-effective
amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration Statement or
the Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in the Registration Statement, related Prospectus or such documents so that,
in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case
of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading
(c)
No Material Misstatement or Omission. The Agent shall not have advised the Company that the Registration Statement or any
the Prospectus, contains an untrue statement of fact which, in the Agent’s opinion, is material, or omits to state a fact
which, in the Agent’s opinion, is material and is required to be stated therein or necessary to make the statements therein
not misleading.
(d)
No Adverse Changes. Except as contemplated in the Prospectus, subsequent to the respective dates as of which information
is given in the Prospectus, neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of
any kind with respect to its capital stock; and there shall not have been any material change in the capital stock (other than
a change in the number of outstanding Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants),
or any material change in the short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities
or other rights to purchase the capital stock of the Company or any of its Subsidiaries, or any development involving a prospective
Material Adverse Effect (whether or not arising in the ordinary course of business), or any loss by strike, fire, flood, earthquake,
accident or other calamity, whether or not covered by insurance, incurred by the Company or any Subsidiary, the effect of which,
in any such case described above, in the Agent’s judgment, makes it impractical or inadvisable to offer or deliver the Shares
on the terms and in the manner contemplated in the Prospectus.
(e)
No Rating Downgrade. On or after the date of this Agreement (i) no downgrading shall have occurred in the rating accorded
any of the Company’s securities by any “nationally recognized statistical organization,” as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s securities.
(f)
Compliance with Certain Obligations. The Company shall have performed each of its obligations under Section 3(o) –
3(q).
(g)
Opinion of Agent Counsel. On each Representation Date to which a waiver does not apply, there shall have been furnished
to the Agent the opinion and negative assurance letter of Goodwin Procter LLP, counsel for the Agent, dated as of such Representation
Date and addressed to Agent, in a form reasonably satisfactory to the Agent, and such counsel shall have received such papers
and information as they request to enable them to pass upon such matters; provided however, the opinion of Goodwin Procter LLP
shall only be required prior to the first Placement Notice, and thereafter, only a negative assurance letter of such counsel shall
be required for each subsequent Representation Date.
(h)
Representation Certificate. On or prior to the first Placement Notice, the Agent shall have received the Representation
Certificate in form and substance satisfactory to the Agent and its counsel.
(i)
No Objection by FINRA. The Financial Industry Regulatory Authority, Inc. shall have raised no objection to the fairness
and reasonableness of the underwriting terms and arrangements.
(j)
Timely Filing of Prospectus and Prospectus Supplement. All filings with the Commission required by Rule 424 under the Securities
Act to have been filed by the Settlement Date, as the case may be, shall have been made within the applicable time period prescribed
for such filing by Rule 424.
(k)
Additional Documents and Certificates. The Company shall have furnished to Agent and the Agent’s counsel such additional
documents, certificates and evidence as they may have reasonably requested.
All
opinions, certificates, letters and other documents described in this Section 4 will be in compliance with the provisions hereof
only if they are reasonably satisfactory in form and substance to Agent and the Agent’s counsel. The Company will furnish
Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.
5.
Indemnification and Contribution.
(a)
Company Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates, directors, officers
and employees, and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which the Agent may become subject,
under the Securities Act or otherwise (including in settlement of any litigation), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon, in whole or in part:
(i)
an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the 430B
Information and at any subsequent time pursuant to Rules 430A and 430B promulgated under the Securities Act, and any other information
deemed to be part of the Registration Statement at the time of effectiveness, and at any subsequent time pursuant to the Securities
Act or the Exchange Act, and the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Prospectus), any Permitted Free Writing Prospectus, or any roadshow as
defined in Rule 433(h) under the Securities Act (a “road show”), or an omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading,
(ii)
any inaccuracy in the representations and warranties of the Company contained herein;
(iii)
any investigation or proceeding by any governmental authority, commenced or threatened (whether or not Agent is a target of or
party to such investigation or proceeding);
(iv)
any failure of the Company to perform its respective obligations hereunder or under law;
and
will reimburse the Agent for any legal or other expenses reasonably incurred by it in connection with investigating or defending
against such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such
case of (i) through (iv) to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus,
or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by Agent
specifically for use in the preparation thereof. “Rule 430B Information,” as used herein, means information
with respect to the Shares and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430B.
In
addition to its other obligations under this Section 5(a), the Company agrees that, as an interim measure during the pendency
of any claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 5(a), it will reimburse the Agent on a monthly basis for all reasonable
and documented legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of
the Company’s obligation to reimburse the Agent for such expenses and the possibility that such payments might later be
held to have been improper by a court of competent jurisdiction. Any such interim reimbursement payments which are not made to
the Agent within 30 days of a request for reimbursement shall bear interest at the WSJ Prime Rate (as published from time to time
by the Wall Street Journal).
(b)
Agent Indemnification. The Agent will indemnify and hold harmless the Company against any losses, claims, damages or liabilities
to which the Company may become subject, under the Securities Act or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of the Agent), but only insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in conformity with written information furnished to the Company by the Agent specifically
for use in the preparation thereof, it being understood and agreed that the only information furnished by the Agent for use in
the Registration Statement or the Prospectus consists of the statements set forth in the second paragraph under the caption “Plan
of Distribution” in the Prospectus, and will reimburse the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending against any such loss, claim, damage, liability or action.
(c)
Notice and Procedures. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve the indemnifying party from any liability that it may have to any indemnified party except
to the extent such indemnifying party has been materially prejudiced by such failure. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided,
however, that if, in the sole judgment of the Agent, it is advisable for the Agent to be represented by separate counsel,
the Agent shall have the right to employ a single counsel to represent the Agent, in which event the reasonable fees and expenses
of such separate counsel shall be borne by the indemnifying party or parties and reimbursed to the Agent as incurred (in accordance
with the provisions of the second paragraph in subsection (a) above).
The
indemnifying party under this Section 5 shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for reasonable fees and expenses of counsel as contemplated by this Section 5, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid request, (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 the indemnified party in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is
or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement,
compromise or consent (a) includes an unconditional release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding and (b) 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)
Contribution; Limitations on Liability; Non-Exclusive Remedy. If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Agent on the other from the offering of the Shares, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Agent on the other
in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand and the Agent on the other shall
be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total commissions received by the Agent (before deducting expenses) from the sale of the Shares. The relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Agent, the
intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Agent agree that it would not be just and equitable if contributions pursuant to this subsection
(d) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable
considerations referred to in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in this subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending against any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this subsection (d), the Agent shall not be required to contribute any
amount in excess of the commissions received by it under this Agreement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
6.
Representations and Agreements to Survive Delivery. All representations, warranties, and agreements of the Company herein
or in certificates delivered pursuant hereto, including but not limited to the agreements of the Agent and the Company contained
in Section 5 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf
of the Agent or any controlling person thereof, or the Company or any of its officers, directors, or controlling persons, and
shall survive delivery of, and payment for, the Shares to and by the Agent hereunder.
7.
Termination of this Agreement.
(a)
The Company shall have the right, by giving ten (10) days’ written notice as hereinafter specified, to terminate the provisions
of this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination
shall be without liability of any party to any other party except that (i) with respect to any pending sale, through the Agent
for the Company, the obligations of the Company, including in respect of compensation of the Agent, shall remain in full force
and effect notwithstanding the termination and (ii) the provisions of Section 3(g), Section 5 and Section 6 of this Agreement
shall remain in full force and effect notwithstanding such termination.
(b)
The Agent shall have the right, by giving ten (10) days’ written notice as hereinafter specified, to terminate the provisions
of this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination
shall be without liability of any party to any other party except that the provisions of Section 3(g), Section 5 and Section 6
of this Agreement shall remain in full force and effect notwithstanding such termination.
(c)
Unless earlier terminated pursuant to this Section 7, this Agreement shall automatically terminate upon the earlier to occur of
the issuance and sale of all of the Shares through the Agent on the terms and subject to the conditions set forth herein, except
that the provisions of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in full force and effect notwithstanding
such termination.
(d)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 7(a), (b) or (c) above or otherwise
by mutual agreement of the parties; provided that any such termination by mutual agreement shall in all cases be deemed to provide
that Section 3(g), Section 5 and Section 6 shall remain in full force and effect.
(e)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case
may be. If such termination shall occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in accordance
with the provisions of Section 2(a)(vii) of this Agreement.
8.
Default by the Company. If the Company shall fail at any Settlement Date to sell and deliver the number of Shares which
it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Agent or, except
as provided in Section 3(g) hereof, any non-defaulting party. No action taken pursuant to this Section shall relieve the Company
from liability, if any, in respect of such default, and the Company shall (A) hold the Agent harmless against any loss, claim
or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise
be entitled absent such default.
9.
Notices. Except as otherwise provided herein, all communications under this Agreement shall be in writing and, if to the
Agent, shall be delivered via overnight delivery services or e-mail to (i) Piper Sandler & Co., U.S. Bancorp Center, 800 Nicollet
Mall, Minneapolis, Minnesota 55402, Attention: Equity Capital Markets, with a copy to Piper Sandler General Counsel at 800 Nicollet
Mall, Minneapolis, MN 55402 and LegalCapMarkets@psc.com; and (ii) the Company at OncoCyte Corporation, 1010 Atlantic Avenue, Suite
102, Alameda, California 94501, Attention: Chief Executive Officer; or in each case to such other address as the person to be
notified may have requested in writing. Any party to this Agreement may change such address for notices by sending to the parties
to this Agreement written notice of a new address for such purpose.
10.
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns and the controlling persons, officers and directors referred to in Section
5(e). Nothing in this Agreement is intended or shall be construed to give to any other person, firm or corporation any legal or equitable
remedy or claim under or in respect of this Agreement or any provision herein contained. The term “successors and assigns”
as herein used shall not include any purchaser, as such purchaser, of any of the Shares from the Agent.
11.
Absence of Fiduciary Relationship. The Company, having been advised by counsel, acknowledges and agrees that: (a) the
Agent has been retained solely to act as a sales agent in connection with the sale of the Shares and that no fiduciary, advisory
or agency relationship between the Company (including any of the Company’s affiliates (including directors), equity holders,
creditors, employees or agents, hereafter, “Company Representatives”), on the one hand, and the Agent
on the other, has been created or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Agent has advised or is advising the Company on other matters and irrespective of the use of the defined term “Agent;”
(b) neither the Agent nor any of its affiliates (including directors), equity holders, creditors, employees or agents, hereafter,
“Agent Representatives”) shall have any duty or obligation to the Company or any Company Representative
except as set forth in this Agreement; (b) the price and other terms of any Placement executed pursuant to this Agreement, as
well as the terms of this Agreement, are deemed acceptable to the Company and its counsel, following discussions and arms-length
negotiations with the Agent; (c) the Company is capable of evaluating and understanding, and in fact has evaluated, understands
and accepts the terms, risks and conditions of any Placement to be executed pursuant to this Agreement, and any other transactions
contemplated by this Agreement; (c) the Company has been advised that the Agent and the Agent Representatives are engaged in a
broad range of transactions which may involve interests that differ from those of the Company and that the Agent and the Agent
Representatives have no obligation to disclose any such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship, or otherwise; (d) the Company has been advised that the Agent is acting, in respect of any Placement
and the transactions contemplated by this Agreement, solely for the benefit of the Agent, and not on behalf of the Company; and
(e) the Company and the Company Representatives waive, to the fullest extent permitted by law, any claims that they may have against
the Agent or any of the Agent Representatives for breach of fiduciary duty or alleged breach of fiduciary duty in respect of any
Placement or any of the transactions contemplated by this Agreement and agree that the Agent and the Agent Representatives shall
have no liability (whether direct or indirect, in contract, tort or otherwise) to the Company or any of the Company Representatives
in respect of any person asserting any claim of breach of any fiduciary duty on behalf of or in right of the Company or any of
the Company Representatives.
12.
Governing Law and Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws
of the State of New York. The Company (on its own behalf and on behalf of its stockholders
and affiliates) 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.
13.
Submission to Jurisdiction, Etc. Each party hereby submits to the exclusive jurisdiction of the U.S. federal and New York
state courts sitting in the Borough of Manhattan, City of New York, in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. The parties hereby irrevocably and unconditionally waive any objection to the
laying of venue of any lawsuit, action or other proceeding in such courts, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such lawsuit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
14.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and
all of which together shall constitute one and the same instrument. Delivery of an executed Agreement or counterpart thereto by
one party to the other may be made by e-mail transmission.
15.
Construction. The section and exhibit headings herein are for convenience only and shall not affect the construction
hereof. References herein to any law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority
shall be deemed to refer to such law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority
as amended, reenacted, supplemented or superseded in whole or in part and in effect from time to time and also to all rules and
regulations promulgated thereunder
[Signature
Page Follows]
Please
sign and return to the Company the enclosed duplicates of this letter whereupon this letter will become a binding agreement between
the Company and the Agent in accordance with its terms.
| |
Very
truly yours, |
| |
|
| |
ONCOCYTE
CORPORATION |
| |
|
|
| |
By: |
/s/ Mitch Levine |
| |
Name: |
Mitch Levine |
| |
Title: |
CFO |
Confirmed
as of the date first
above
mentioned.
| PIPER
SANDLER & CO. |
|
| |
|
|
| By: |
/s/ Neil Riley |
|
| Name: |
Neil Riley |
|
| Title: |
Managing
Director |
|
SCHEDULE
1
FORM
OF PLACEMENT NOTICE
No
Facsimile and No Voicemail
| From: |
OncoCyte
Corporation |
| |
|
| To: |
Piper
Sandler & Co.
Attention:
Neil
A. Riley
Neil.Riley@psc.com
Connor
N. Anderson
Connor.Anderson@psc.com
Tom
Wright
Thomas.Wright@psc.com
Jay
A. Hershey
Jay.Hershey@psc.com |
| |
|
| Date: |
[●],
20[●] |
| |
|
| Subject: |
Equity
Distribution Agreement – Placement Notice |
| |
|
| Gentlemen: |
|
Pursuant
to the terms and subject to the conditions contained in the Equity Distribution Agreement between OncoCyte Corporation ( “Company”),
and Piper Sandler & Co. ( “Agent”) dated March 20, 2020 [(the “Agreement”), the Company
hereby requests that Agent sell up to ]\ shares of the Company’s common stock, no par value, at a minimum market price of
$[●] per share. Sales should begin on the date of this Placement Notice and shall continue until [●] /[all shares
are sold].
SCHEDULE
2
NOTICE
PARTIES
OncoCyte
Corporation
Mitch
Levine, CFO, mlevine@oncocyte.com
Ronnie
Andrews, CEO, randrews@oncocyte.com
Al
Parker, COO, aparker@oncocyte.com
Piper
Sandler & Co.
Neil
A. Riley
Neil.Riley@psc.com
Connor
N. Anderson
Connor.Anderson@psc.com
Tom
Wright
Thomas.Wright@psc.com
Jay
A. Hershey
Jay.Hershey@psc.com
SCHEDULE
3
FORM
OF REPRESENTATION CERTIFICATE
PURSUANT
TO SECTION 3(q) OF THE AGREEMENT
[Date]
Piper
Sandler & Co.
800
Nicollet Mall
Minneapolis,
MN 55402
Sir:
The
undersigned, the duly qualified and elected [●], of OncoCyte Corporation, a Delaware corporation (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 3(q) of the Equity Distribution
Agreement, dated March 20, 2020 (the “Equity Distribution Agreement”), between the Company and Piper Sandler
& Co., that to the best of the knowledge of the undersigned:
(i)
The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made
at and as of the date of the certificate, and the Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the date of the certificate;
(ii)
No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof
or the qualification of the Shares for Registration Statement, nor suspending or preventing the use of the base prospectus, the
Prospectus or any Permitted Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or,
to the best of the Company’s knowledge, is contemplated by the Commission or any state or regulatory body;
(iii)
The Shares have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization,
issuance and sale of the Shares has been validly and sufficiently taken;
(iv)
The signers of this certificate have carefully examined the Registration Statement, the base prospectus, the Prospectus and any
Permitted Free Writing Prospectus, and any amendments thereof or supplements thereto (including any documents filed under the
Exchange Act and deemed to be incorporated by reference into the base prospectus, the Prospectus and any Permitted Free Writing
Prospectus),
(A)
each part of the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto (including any documents
filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus) contain, and contained when such
part of the Registration Statement (or such amendment) became effective, all statements and information required to be included
therein, each part of the Registration Statement, or any amendment thereof, does not contain, and did not contain, when such part
of the Registration Statement (or such amendment) became effective, any untrue statement of a material fact or omit to state,
and did not omit to state when such part of the Registration Statement (or such amendment) became effective, any material fact
required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented,
does not include and did not include as of its date, or the time of first use within the meaning of the Securities Act Regulations,
any untrue statement of a material fact or omit to state and did not omit to state as of its date, or the time of first use within
the meaning of the Securities Act Regulations, a material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading,
(B)
at no time during the period that begins on the earlier of the date of such base prospectus, Prospectus, or Permitted Free Writing
Prospectus and the date such base prospectus, Prospectus, or Permitted Free Writing Prospectus was filed with the Commission and
ends on the date of this certificate did such base prospectus, Prospectus, or Permitted Free Writing Prospectus, as then amended
or supplemented, include an untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading,
(C)
since the date of the Equity Distribution Agreement, there has occurred no event required to be set forth in an amended or supplemented
prospectus which has not been so set forth, and there has been no document required to be filed under the Exchange Act that upon
such filing would be deemed to be incorporated by reference into the base prospectus, the Prospectus or any Permitted Free Writing
Prospectus that has not been so filed,
(D)
except as stated in the Prospectus or any Permitted Free Writing Prospectus, the Company has not incurred any material liabilities
or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared
or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the base
prospectus, the Prospectus, and any Permitted Free Writing Prospectus, there has not been any change in the capital stock (other
than a change in the number of outstanding Common Stock due to sales of Shares pursuant to the Equity Distribution Agreement and
the issuance of shares of Common Stock upon the exercise of equity awards or warrants), or any material change in the short term
or long term debt, or any Material Adverse Effect or any development involving a prospective Material Adverse Effect (whether
or not arising in the ordinary course of business), or any loss by strike, fire, flood, earthquake, accident or other calamity,
whether or not covered by insurance, incurred by the Company, and
(E)
except as stated in the base prospectus, the Prospectus, and any Permitted Free Writing Prospectus, there is not pending, or,
to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company is a party before
or by any court or governmental agency, authority or body, or any arbitrator, which might result in a Material Adverse Effect.
Capitalized
terms used herein without definition shall have the meanings given to such terms in the Equity Distribution Agreement.
| |
OncoCyte
Corporation |
| |
|
|
| |
By:
|
|
| |
Name: |
|
| |
Title:
|
|
SCHEDULE
4
SUBSIDIARIES
Insight
Genetics, Inc.
