Exhibit 1.1
Execution Version
INMUNE BIO INC.
UNDERWRITING AGREEMENT
July 16, 2020
BTIG, LLC
600 Montgomery Street, 6th
Floor
San Francisco, CA 94111
Ladies and Gentlemen:
Introductory. INmune Bio Inc., a
Nevada corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule
A (the “Underwriters”) an aggregate of 2,173,914 shares of its common stock, par value $0.001 per share
(the “Shares”). The 2,173,914 Shares to be sold by the Company are called the “Firm Shares.”
In addition, the Company has granted to the Underwriters an option to purchase up to an additional 326,086 Shares as provided in
Section 2. The additional 326,086 Shares to be sold by the Company pursuant to such option are collectively called the “Optional
Shares.” The Firm Shares and, if and to the extent such option is exercised, the Optional Shares are collectively called
the “Offered Shares.” BTIG, LLC (“BTIG”) has agreed to act as representative of the several
Underwriters (in such capacity, the “Representative”) in connection with the offering and sale of the Offered
Shares. To the extent there are no additional underwriters listed on Schedule A, the term “Representative” as
used herein shall mean you, as Underwriter, and the term “Underwriters” shall mean either the singular or the plural,
as the context requires.
The Company has prepared and filed with
the Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3 (File
No. 333-237368), including a base prospectus (the “Base Prospectus”) to be used in connection with the
public offering and sale of the Offered Shares. Such registration statement, as amended, including the financial statements, exhibits
and schedules thereto, in the form in which it became effective under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the “Securities Act”), including all documents incorporated
or deemed to be incorporated by reference therein and any information deemed to be a part thereof at the time of effectiveness
pursuant to Rule 430A or 430B under the Securities Act, is called the “Registration Statement.” Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities Act in connection with the offer and sale of the Offered
Shares is called the “Rule 462(b) Registration Statement,” and from and after the date and time of filing of
any such Rule 462(b) Registration Statement the term “Registration Statement” shall include the Rule 462(b) Registration
Statement. The preliminary prospectus supplement dated July 15, 2020 describing the Offered Shares and the offering thereof (the
“Preliminary Prospectus Supplement”), together with the Base Prospectus, is called the “Preliminary
Prospectus,” and the Preliminary Prospectus and any other prospectus supplement to the Base Prospectus in preliminary
form that describes the Offered Shares and the offering thereof and is used prior to the filing of the Prospectus (as defined below),
together with the Base Prospectus, is called a “preliminary prospectus.” As used herein, the term “Prospectus”
shall mean the final prospectus supplement to the Base Prospectus that describes the Offered Shares and the offering thereof (the
“Final Prospectus Supplement”), together with the Base Prospectus, in the form first used by the Underwriters
to confirm sales of the Offered Shares or in the form first made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act. References herein to the Preliminary Prospectus, any preliminary prospectus
and the Prospectus shall refer to both the prospectus supplement and the Base Prospectus components of such prospectus. As used
herein, “Applicable Time” is 8:30 a.m. (New York City time) on July 16, 2020. As used herein, “free
writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, and “Time of Sale Prospectus”
means the Preliminary Prospectus, as amended or supplemented immediately prior to the Applicable Time, together with the free writing
prospectuses, if any, identified in Schedule B hereto. As used herein, “Road Show” means a “road
show” (as defined in Rule 433 under the Securities Act) relating to the offering of the Offered Shares contemplated hereby
that is a “written communication” (as defined in Rule 405 under the Securities Act). As used herein, “Section
5(d) Written Communication” means each written communication (within the meaning of Rule 405 under the Securities Act)
that is made in reliance on Section 5(d) of the Securities Act by the Company or any person authorized to act on behalf of the
Company to one or more potential investors that are qualified institutional buyers (“QIBs”) and/or institutions
that are accredited investors (“IAIs”), as such terms are respectively defined in Rule 144A and Rule 501(a)
under the Securities Act, to determine whether such investors might have an interest in the offering of the Offered Shares; “Section
5(d) Oral Communication” means each oral communication, if any, made in reliance on Section 5(d) of the Securities Act
by the Company or any person authorized to act on behalf of the Company made to one or more QIBs and/or one or more IAIs to determine
whether such investors might have an interest in the offering of the Offered Shares; “Marketing Materials” means
any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of
the offering of the Offered Shares, including any roadshow or investor presentations made to investors by the Company (whether
in person or electronically); and “Permitted Section 5(d) Communication” means the Section 5(d) Written Communication(s)
and Marketing Materials listed on Schedule C attached hereto.
All references in this Agreement to the
Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus and the Prospectus shall include
the documents incorporated or deemed to be incorporated by reference therein. All references in this Agreement to financial statements
and schedules and other information which are “contained,” “included” or “stated” in, or “part
of” the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus, and all other references of like import, shall be deemed to
mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be. All references in this Agreement to amendments
or supplements to the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, the
Time of Sale Prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”)
that is or is deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, or the Prospectus, as the case may be. All references in this Agreement to (i) the Registration
Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus or the Prospectus, any amendments or supplements
to any of the foregoing, or any free writing prospectus, shall include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) and (ii) the Prospectus shall be deemed
to include any “electronic Prospectus” provided for use in connection with the offering of the Offered Shares as contemplated
by Section 3(n) of this Agreement.
In the event that the Company has only one
Subsidiary, then all references herein to “Subsidiaries” of the Company shall be deemed to refer to such single Subsidiary,
mutatis mutandis.
The Company hereby confirms its agreements
with the Underwriters as follows:
Section 1. Representations and Warranties
of the Company.
The Company hereby represents, warrants
and covenants to each Underwriter, as of the date of this Agreement, as of the First Closing Date (as hereinafter defined) and
as of each Option Closing Date (as hereinafter defined), if any, as follows:
(a)
Compliance with Registration Requirements. The Registration Statement has become effective under the Securities
Act. The Company has complied, to the Commission’s satisfaction, with all requests of the Commission for additional or supplemental
information, if any. No stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for
such purpose have been instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened by the
Commission. At (i) the time the Registration Statement was originally filed with the Commission, and at the time the Company’s
Annual Report on Form 10-K for the year ended December 31, 2019 (the “Annual Report”) was filed with the Commission,
the Company met the then applicable requirements for the use of Form S-3 under the Securities Act and (ii) on the date of
this Agreement the Company meets the applicable requirements for the use of Form S-3 under the Securities Act, including, but not
limited to, General Instruction I.B.1. of Form S-3. The documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission,
or became effective under the Exchange Act, as the case may be, complied and will comply in all material respects with the requirements
of the Exchange Act.
(b)
Disclosure. Each preliminary prospectus and the Prospectus when filed complied in all material respects
with the Securities Act and, if filed by electronic transmission pursuant to EDGAR, was identical (except as may be permitted by
Regulation S-T under the Securities Act) to the copy thereof delivered to the Underwriters for use in connection with the
offer and sale of the Offered Shares. Each of the Registration Statement and any post-effective amendment thereto, at the time
it became or becomes effective, complied and will comply in all material respects with the Securities Act and did not and will
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. As of the Applicable Time, the Time of Sale Prospectus did not, and at the First
Closing Date (as defined in Section 2) and at each applicable Option Closing Date (as
defined in Section 2), will not, contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not misleading. The Prospectus, as of
its date, did not, and at the First Closing Date and at each applicable Option Closing Date, will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and warranties set forth in the three immediately preceding sentences
do not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Prospectus
or the Time of Sale Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with written
information relating to any Underwriter furnished to the Company in writing by the Representative expressly for use therein, it
being understood and agreed that the only such information consists of the information described in Section
9(b) below. There are no contracts or other documents required to be described in the Time of Sale Prospectus or the Prospectus
or to be filed as an exhibit to the Registration Statement which have not been described or filed as required.
(c)
Free Writing Prospectuses; Road Show. As of the determination date referenced in Rule 164(h) under the
Securities Act, the Company was not, is not or will not be (as applicable) an “ineligible issuer” in connection with
the offering of the Offered Shares pursuant to Rules 164, 405 and 433 under the Securities Act. Each free writing prospectus that
the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act. Each free writing prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the
Company complies or will comply in all material respects with the requirements of Rule 433 under the Securities Act, including
timely filing with the Commission or retention where required and legending, and each such free writing prospectus, as of its issue
date and at all subsequent times through the completion of the public offer and sale of the Offered Shares did not, does not and
will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Prospectus or any preliminary prospectus and not superseded or modified. Except for the free writing prospectuses,
if any, identified in Schedule B, and electronic road shows, if any, furnished to you before first use, the Company has
not prepared, used or referred to, and will not, without your prior written consent, prepare, use or refer to, any free writing
prospectus. Each Road Show, when considered together with the Time of Sale Prospectus, did not, as of the Applicable Time, contain
any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d)
Distribution of Offering Material By the Company. Prior to the later of (i) the expiration or termination
of the option granted to the several Underwriters in Section 2 and (ii) the completion
of the Underwriters’ distribution of the Offered Shares, the Company has not distributed and will not distribute any
offering material in connection with the offering and sale of the Offered Shares other than the Registration Statement, the Time
of Sale Prospectus, the Prospectus or any free writing prospectus reviewed and consented to by the Representative, the free writing
prospectuses, if any, identified on Schedule B hereto.
(e)
The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(f)
Authorization of the Offered Shares. The Offered Shares have been duly authorized for issuance and sale
pursuant to this Agreement and, when issued and delivered by the Company against payment therefor pursuant to this Agreement, will
be validly issued, fully paid and nonassessable, and the issuance and sale of the Offered Shares is not subject to any preemptive
rights, rights of first refusal or other similar rights to subscribe for or purchase the Offered Shares.
(g)
No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar
rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated
by this Agreement.
(h)
No Material Adverse Change. Except as otherwise disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement,
the Time of Sale Prospectus and the Prospectus: (i) there has been no material adverse change, or any development that could
be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, properties,
operations, assets, liabilities or prospects, whether or not arising from transactions in the ordinary course of business, of the
Company and its Subsidiaries, considered as one entity (any such change being referred to herein as a “Material Adverse
Change”); (ii) the Company and its Subsidiaries, considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, including without limitation any losses or interference with its business from fire,
explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute
or court or governmental action, order or decree, that are material, individually or in the aggregate, to the Company and its Subsidiaries,
considered as one entity, or has entered into any transactions not in the ordinary course of business; (iii) there has not been
any material disruption, material delay or other material adverse change in (A) the development of any of the Company’s product
candidates, (B) the anticipated timeline of pre-clinical or clinical trials to support the development of any of the Company’s
product candidates, or (C) the recruitment of candidates for clinical trials to support the development of any of the Company’s
product candidates, in each case as a result of the recent outbreak of COVID-19, or as a result of any measures intended to contain
the outbreak of COVID-19 imposed by any federal, state, local or foreign government or government agency in any country or region
in which the Company, or any of its agents, consultants, advisors or vendors, has assets or properties or conducts business, including,
without limitation, any limitations, curtailments, suspensions or closures of businesses, business offices or establishments, schools,
properties and other public areas due to quarantines, curfews, travel restrictions, workplace controls, “stay at home”
orders, social distancing requirements or guidelines or other public gathering restrictions or limitations; and (iv) there
has not been any material decrease in the capital stock or any material increase in any short-term or long-term indebtedness of
the Company or its Subsidiaries and there has been no dividend or distribution of any kind declared, paid or made by the Company
or, except for dividends paid to the Company or other Subsidiaries, by any of the Company’s Subsidiaries on any class of
capital stock, or any repurchase or redemption by the Company or any of its Subsidiaries of any class of capital stock.
(i)
Independent Accountants. Marcum LLP, whose report on the consolidated financial statements of the Company
and the Subsidiaries is incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
is an independent registered public accounting firm with respect to the Company as required by the Securities Act, the Exchange
Act and the Public Company Accounting Oversight Board (United States) (the “PCAOB”). Marcum LLP has
not been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A of the Exchange
Act).
(j)
Financial Statements. The financial statements included or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, together with the related notes and schedules, present fairly the consolidated
financial position of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations and
cash flows of the Company and the Subsidiaries for the periods specified and have been prepared in compliance with the requirements
of the Securities Act and Exchange Act and in conformity with United States generally accepted accounting principles (“GAAP”)
applied on a consistent basis during the periods involved. The interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects
and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. No other financial statements
or supporting schedules are required to be included in the Registration Statement, the Time of Sale Prospectus or the Prospectus.
The selected financial data and the summary financial information included in the Registration Statement, the Time of Sale Prospectus
and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the financial
statements included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
as of and at the dates indicated. Any pro forma financial statements or data included or incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the Prospectus comply with the requirements of Regulation S-X of the Securities
Act, including, without limitation, Article 11 thereof, and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the circumstances
referred to therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation
of those statements and data. The other financial data set forth or incorporated by reference in the Registration Statement, the
Time of Sale Prospectus and the Prospectus is accurately presented and prepared on a basis consistent with the financial statements
and books and records of the Company. The Company and the Subsidiaries do not have any material liabilities or obligations, direct
or contingent (including any off-balance sheet obligations or any “variable interest entities” as that term is used
in Accounting Standards Codification Paragraph 810-10-25-20), not disclosed in the Registration Statement, the Time of Sale Prospectus
and the Prospectus. All disclosures contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus, including
the Incorporated Documents, that contain “non-GAAP financial measures” (as such term is defined by the rules and regulations
of the Commission) comply, in all material respects, with Regulation G under the Exchange Act and Item 10 of Regulation S-K under
the Securities Act, to the extent applicable. To the Company’s knowledge, no person who has been suspended or barred from
being associated with a registered public accounting firm, or who has failed to comply with any sanction pursuant to Rule 5300
promulgated by the PCAOB, has participated in or otherwise aided the preparation of, or audited, the financial statements, supporting
schedules or other financial data filed with the Commission as a part of the Registration Statement, the Time of Sale Prospectus
and the Prospectus.
(k)
Company’s Accounting System. Except as disclosed in the Registration Statement, the Time of Sale
Prospectus and Prospectus, the Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets; (iii) receipts and expenditures are being made only in accordance with management’s
general or specific authorization; (iv) access to assets is permitted only in accordance with management’s general or
specific authorization; (v) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences, and (vi) the interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus fairly
presents the information called for in all material respects and is prepared in accordance with the Commission's rules and guidelines
applicable thereto.
(l)
Disclosure Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting.
Except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, since the end of the Company’s
most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
Except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (1) the Company and its Subsidiaries,
considered as one enterprise, have established and currently maintain disclosure controls and procedures within the meaning of
Rule 13a-15 under the Exchange Act; (2) as of March 31, 2020, the Company has determined that such disclosure controls and procedures
were not effective and, therefore, not in compliance with Rule 13a-15 under the Exchange Act and (3) as of March 31, 2020 and as
of the date of this Agreement, the Company’s Chief Executive Officer and its Chief Financial Officer each have determined
that notwithstanding the failure of the Company’s disclosure controls and procedures to be effective in compliance with Rule
13a-15 under the Exchange Act, they were sufficient to ensure that information required to
be disclosed by the Company in the reports that it files or submits to the Commission under the Exchange Act is accumulated and
communicated to the Company’s management, including its principal executive and principal financial officers, as appropriate
to allow timely decisions regarding required disclosure.
(m)
Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or
any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any applicable
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(n)
Incorporation and Good Standing of the Company. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Nevada, with the corporate power and authority to acquire,
own, lease and operate its properties, and to lease the same to others, and to conduct its business as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, to execute and deliver this Agreement and to issue and sell the Offered
Shares as contemplated herein; and the Company is in compliance in all respects with the laws, orders, rules, regulations and directives
issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate,
have a Material Adverse Effect (as defined below). The Company is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate,
either (i) have or reasonably be expected to have a material adverse effect on the business, operations, properties, financial
condition, results of operations or prospects of the Company and its Subsidiaries, taken as a whole, or (ii) prevent, materially
interfere with or materially delay consummation of the transactions contemplated hereby (the effects described in the foregoing
clauses (i) and (ii) being herein referred to as a “Material Adverse Effect”).
(o)
Subsidiaries. Each subsidiary of the Company (each a “Subsidiary” and collectively,
the “Subsidiaries”), has been duly incorporated or organized and is validly existing as a corporation,
limited liability company or limited partnership, as the case may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, has corporate power and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified as a foreign corporation,
limited liability company or limited partnership, as the case may be, to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a Material Adverse Effect. All of the issued and outstanding capital stock
or other equity or ownership interests of each of the Company’s Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and are owned by the Company, directly or through Subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or adverse claim. The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the Subsidiaries listed in Exhibit 21 to the Company’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2019.
(p)
Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the caption “Capitalization”
(other than for subsequent issuances, if any, pursuant to employee benefit plans, or upon the exercise of outstanding options or
warrants, in each case described in the Registration Statement, the Time of Sale Prospectus and the Prospectus). The Shares (including
the Offered Shares) conform in all material respects to the description thereof contained in the Time of Sale Prospectus. All of
the issued and outstanding Shares have been duly authorized and validly issued, are fully paid and nonassessable and have been
issued in compliance with all federal and state securities laws. None of the outstanding Shares was issued in violation of any
preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There
are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its Subsidiaries
other than those described in the Registration Statement, the Time of Sale Prospectus and the Prospectus. The descriptions of the
Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder,
set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus accurately and fairly presents the information
required to be shown with respect to such plans, arrangements, options and rights.
(q)
Stock Exchange Listing. The Shares are registered pursuant to Section 12(b) of the Exchange Act and are
listed on the The Nasdaq Capital Market (the “NASDAQ”), and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Shares under the Exchange Act or delisting the Shares from NASDAQ,
nor has the Company received any notification that the Commission or NASDAQ is contemplating terminating such registration or listing.
To the Company’s knowledge, it is in compliance with all applicable listing requirements of NASDAQ. The Company has filed
a Notification of Listing of Additional Shares with NASDAQ with respect to the Shares.
(r)
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. Neither the
Company nor any of its Subsidiaries is in violation of its charter or by-laws, partnership agreement or operating agreement or
similar organizational documents, as applicable, or is in default (or, with the giving of notice or lapse of time, would be in
default) (“Default”) under any indenture, loan, credit agreement, note, lease, license agreement, contract,
franchise or other instrument (including, without limitation, any pledge agreement, security agreement, mortgage or other instrument
or agreement evidencing, guaranteeing, securing or relating to indebtedness) to which the Company or any of its Subsidiaries is
a party or by which it or any of them may be bound, or to which any of their respective properties or assets are subject (each,
an “Existing Instrument”), except for such Defaults as could not be expected, individually or in the aggregate,
to have a Material Adverse Effect. The Company’s execution, delivery and performance of this Agreement, consummation of the
transactions contemplated hereby and by the Registration Statement, the Time of Sale Prospectus and the Prospectus and the issuance
and sale of the Offered Shares (including the use of proceeds from the sale of the Offered Shares as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) (i) have been duly
authorized by all necessary corporate action and will not result in any violation of the provisions of the charter or by-laws,
partnership agreement or operating agreement or similar organizational documents, as applicable, of the Company or any Subsidiary
(ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below)
under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any of its Subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument ,except as could not
be expected, individually or in the aggregate, to have a Material Adverse Effect, and (iii) will not result in any violation
of any law, administrative regulation or administrative or court decree applicable to the Company or any of its Subsidiaries. No
consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the Company’s execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Registration Statement, the Time of Sale Prospectus and the Prospectus, except
such as have been obtained or made by the Company and are in full force and effect under the Securities Act and such as may be
required under applicable state securities or blue sky laws or FINRA. As used herein, a “Debt Repayment Triggering Event”
means any event or condition which gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.
(s)
Compliance with Laws. The Company and its Subsidiaries have been and are in compliance with all applicable
laws, rules and regulations, except where failure to be so in compliance could not be expected, individually or in the aggregate,
to have a Material Adverse Effect.
(t)
No Material Actions or Proceedings. There is no action, suit, proceeding, inquiry or investigation brought
by or before any governmental entity now pending or, to the knowledge of the Company, threatened, against or affecting the Company
or any of its Subsidiaries, which could be expected, individually or in the aggregate, to have a Material Adverse Effect or materially
and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company
of its obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company or any such
Subsidiary is a party or of which any of their respective properties or assets is the subject, including ordinary routine litigation
incidental to the business, if determined adversely to the Company, could not be expected to have a Material Adverse Effect. No
material labor dispute with the employees of the Company or any of its Subsidiaries, or with the employees of any principal supplier,
manufacturer, customer or contractor of the Company, exists or, to the knowledge of the Company, is threatened or imminent.
(u)
Intellectual Property Rights. Except as set forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, the Company or its Subsidiaries own or possess a valid right to use all material patents, trademarks,
service marks, trade names, copyrights, patentable inventions, trade secrets, know-how and other intellectual property (collectively,
the “Intellectual Property”) used by the Company or its Subsidiaries in, and material to, the conduct of the
Company’s or its Subsidiaries’ business as now conducted or as proposed in the Registration Statement, the Time of
Sale Prospectus and the Prospectus to be conducted. Except as set forth in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, there is no material infringement by third parties of any of the Intellectual Property and there are no legal
or governmental actions, suits, proceedings or claims pending or, to the Company’s knowledge, threatened, against the Company
(i) challenging the Company’s rights in or to any Intellectual Property, (ii) challenging the validity or scope of any Intellectual
Property owned by the Company, or (iii) alleging that the operation of the Company’s business as now conducted infringes
or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of a third party, where any such
action, suit, proceeding or claim would, individually or in the aggregate, have a Material Adverse Effect.
(v)
All Necessary Permits, etc. Each of the Company and its Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary licenses, certificates, authorizations, orders, permits, consents and approvals from other
persons, in order to acquire and own, lease or sublease, lease to others and conduct its respective business as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus (collectively, “Permits”), except where
the failure to have or obtain such Permits and to make such filings would not, individually or in the aggregate, have a Material
Adverse Effect. All of such Permits are valid and in full force and effect, except where the invalidity of such license, permit,
authorization, consent or approval to be in full force and effect would not have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is in violation of, or in default under, or has received notice of any proceedings relating to revocation
or modification of, any such Permits (or has any reason to believe that any such Permit will not be renewed in the ordinary course)
or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any
of its Subsidiaries, except where such violation, default, revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect.
(w)
Title to Properties. Except as set forth in the Registration Statement, the Time of Sale Prospectus and
the Prospectus, the Company and each of its Subsidiaries have good and marketable title to all of the properties and assets reflected
as owned in the financial statements referred to in Section 1(j) above (or elsewhere in the Registration Statement, the Time of
Sale Prospectus and the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities,
claims and other defects, except such as do not materially and adversely affect the value of such property or assets and, to the
Company’s knowledge, do not materially interfere with the use made or proposed to be made of such property by the Company
or any Subsidiary. The material real property, improvements, equipment and personal property held under lease by the Company or
any of its Subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company
or such Significant Subsidiary. The Company and each of its Subsidiaries have such consents, easements, rights-of-way or licenses
from any person (“rights-of-way”) as are necessary to enable the Company and each of its Subsidiaries
to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
and except for such rights-of-way the lack of which would not have, individually or in the aggregate, a Material Adverse Effect.
(x)
Tax Law Compliance. All tax returns of the Company and its Subsidiaries required by law to be filed have
been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments
against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The charges, accruals
and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined
are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to
the extent of any inadequacy that would not result in a Material Adverse Effect.
(y)
Stock Transfer Taxes. All stock transfer or other taxes (other than income taxes) which are required to
be paid by the Company in connection with the sale and transfer of the Offered Shares to be sold hereunder will be, or will have
been, fully paid by the Company and all laws imposing such taxes will be or will have been fully complied with in all material
respects.
(z)
Insurance. The Company and its Subsidiaries carry or are entitled to the benefits of insurance in such
amounts and covering such risks as the Company reasonably deems adequate, and all such insurance is in full force and effect. The
Company has no reason to believe that it or any Subsidiary will not be able (i) to renew its existing insurance coverage as and
when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to
conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither the Company nor
any Subsidiary has been denied any material insurance coverage which it has sought or for which it has applied.
(aa)
Compliance with Environmental Laws. Except as otherwise disclosed in the Registration Statement, the Time
of Sale Prospectus and Prospectus, neither the Company nor any of its Subsidiaries has been in material violation of, in connection
with the ownership, use, maintenance or operation of its properties and assets, any applicable federal, state, municipal, local
or foreign laws, rules, regulations, decisions, orders, policies, permits, licenses, certificates or approvals having force of
law, domestic or foreign, relating to environmental, health, or safety matters or hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “Environmental Laws”). Without limiting the generality of the foregoing and except
as otherwise described in the Registration Statement, the Time of Sale Prospectus and Prospectus: (i) the Company and each of its
Subsidiaries has occupied its properties and has received, handled, used, stored, treated, shipped and disposed of all pollutants,
contaminants, hazardous or toxic materials, controlled or dangerous substances or wastes in compliance with all applicable Environmental
Laws to conduct their respective businesses; (ii) neither the Company nor any of its Subsidiaries is aware of any unlawful spills,
releases, discharges or disposal of any pollutants, contaminants, hazardous or toxic materials, controlled or dangerous substances
or wastes that have occurred or are presently occurring on or from its properties as a result of any construction on or operation
and use of its properties, (iii) there are no orders, rulings or directives issued against the Company or any of its Subsidiaries,
and there are no orders, rulings or directives pending or, to the knowledge of the Company, threatened against the Company or any
of its Subsidiaries under or pursuant to any Environmental Laws requiring any work, repairs, construction or capital expenditures
with respect to any properties or assets of the Company or any of its Subsidiaries; and (iv) no notice with respect to any of the
matters referred to in this Section 1(aa), including any alleged violations by the Company or any of the Subsidiaries with respect
thereto has been received by the Company or any of its Subsidiaries, and no writ, injunction, order or judgment is outstanding,
and no legal proceeding under or pursuant to any Environmental Laws or relating to the ownership, use, maintenance or operation
of the properties and assets of the Company or any of its Subsidiaries is in progress, pending or threatened, which could reasonably
be expected to have a Material Adverse Effect, and to the knowledge of the Company, there are no grounds or conditions which exist,
on or under any property now or previously owned, operated or leased by the Company or any of its Subsidiaries, on which any such
legal proceeding might be commenced with any reasonable likelihood of success or with the passage of time, or the giving of notice
or both, would give rise thereto.
(bb)
[RESERVED.]
(cc)
ERISA Compliance. (i) The Company and its Subsidiaries and any “employee benefit plan” (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations
thereunder (collectively, “ERISA”)) established or maintained by the Company, its Subsidiaries or their
ERISA Affiliates (as defined below) are in compliance in all material respects with ERISA and the Internal Revenue Code of 1986,
as amended, and the regulations and published interpretations thereunder (the “Code”); (ii) no “reportable
event” (as defined under ERISA), other than an event for which the reporting requirement has been waived under regulations
issued by the Pension Benefit Guaranty Corporation, has occurred with respect to any pension plan subject to Title IV of ERISA
that is established or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates (“Pension Plan”);
(iii) no Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA exceed the current value of that Pension Plan’s
assets, all as determined as of the most recent valuation date for the Pension Plan in accordance with the assumptions used
for funding the Pension Plan pursuant to Section 412 of ERISA; (iv) none of the Company, its Subsidiaries or any of their ERISA
Affiliates has incurred or reasonably expects to incur any liability under (A) Title IV of ERISA with respect to termination of,
or withdrawal from, any “employee benefit plan,” (B) Sections 4971 or 4975 of the Code, (C) Section 412 of the Code
as a result of a failure to satisfy the minimum funding standard, or (D) Section 4980B of the Code with respect to the excise tax
imposed thereunder; and (v) each “employee benefit plan” established or maintained by the Company, its Subsidiaries
or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code has received a favorable determination
letter from the Internal Revenue Service and nothing has occurred, whether by action or failure to act, which is reasonably likely
to cause disqualification of any such employee benefit plan under Section 401(a) of the Code, except in the case of each of clauses
(i) through (v), which would not have a Material Adverse Effect. “ERISA Affiliate” means, with respect
to the Company or a Subsidiary, any member of any group of organizations described in Section 414(b), (c), (m) or (o) of the Code,
of which the Company or such Subsidiary is a member.
(dd)
Company Not an “Investment Company.” The Company is not, and will not be, either after receipt
of payment for the Offered Shares or after the application of the proceeds therefrom as described under “Use of Proceeds”
in the Registration Statement, the Time of Sale Prospectus or the Prospectus, required to register as an “investment company”
under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(ee)
No Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its
Subsidiaries has taken, directly or indirectly, any action designed to or that might cause or result in stabilization or manipulation
of the price of the Shares or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange
Act (“Regulation M”)) with respect to the Shares, whether to facilitate the sale or resale of the Offered Shares
or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(ff)
Related-Party Transactions. There are no business relationships or related-party transactions involving
the Company or any of its Subsidiaries or any other person required to be described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus that have not been described as required.
(gg)
FINRA Matters. The Company is not required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act and does not, directly or indirectly through one or more intermediaries,
control or have any other association with (within the meaning of Article I of the By-laws of FINRA) any member firm of FINRA.
No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers or stockholders
of the Company, on the other hand, which is required by the rules of FINRA to be described in the Registration Statement, the Time
of Sale Prospectus and the Prospectus which is not so described. All of the information (including, but not limited to, information
regarding affiliations, security ownership and trading activity) provided to the Representative or to counsel for the Representative
by the Company, and, to the Company’s knowledge, its counsel, its officers and directors and certain holders of any securities
(debt or equity) or warrants, options or rights to acquire any securities of the Company in connection with the offering of the
Offered Shares is true, complete, correct and compliant in all material respects with FINRA’s rules and any letters, filings
or other supplemental information provided to FINRA by the Company, and, to the Company’s knowledge, its counsel, its officers
and directors and certain holders of any securities (debt or equity) or options to acquire any securities of the Company pursuant
to FINRA Rules or NASD Conduct Rules is true, complete and correct in all material respects.
(hh)
Parties to Lock-Up Agreements. The Company has furnished to the Underwriters a letter agreement in the
form attached hereto as Exhibit A (the “Lock-up Agreement”) from each of the persons listed on Exhibit B.
Such Exhibit B lists under an appropriate caption the directors and officers of the Company, and certain beneficial
owners of more than 5% of the Company’s common stock. If any additional persons shall become directors or officers of the
Company prior to the end of the Company Lock-up Period (as defined below), the Company shall cause each such person, prior to or
contemporaneously with their appointment or election as a director or officer of the Company, to execute and deliver to BTIG a
Lock-up Agreement.
(ii)
Statistical and Market-Related Data. All statistical, demographic and market-related data included in
the Registration Statement, the Time of Sale Prospectus or the Prospectus are based on or derived from sources that the Company
believes, after reasonable inquiry, to be reliable and accurate. To the extent required, the Company has obtained the written consent
to the use of such data from such sources.
(jj)
No Unlawful Contributions or Other Payments. Neither the Company nor any of its Subsidiaries nor, to the
best of the Company’s knowledge, any employee or agent of the Company or any Subsidiary, has made any contribution or other
payment to any official of, or candidate for, any federal, state or foreign office in violation of any law or of the character
required to be disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus.
(kk)
Foreign Corrupt Practices Act. Neither the Company nor any of its Subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its Subsidiaries
has, in the course of its actions for, or on behalf of, the Company or any of its Subsidiaries (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct
or indirect unlawful payment to any domestic government official, “foreign official” (as defined in the U.S. Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”)
or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA or any applicable non-U.S.
anti-bribery statute or regulation; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any domestic government official, such foreign official or employee; and the Company and its Subsidiaries and,
to the knowledge of the Company, the Company’s affiliates have conducted their respective businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(ll)
Money Laundering Laws. The operations of the Company and its Subsidiaries are, and have been conducted
at all times, in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder
and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company, threatened.
(mm)
OFAC. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, after due
inquiry, any director, officer, agent, employee, affiliate or person acting on behalf 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 this offering, or lend, contribute
or otherwise make available such proceeds to any Subsidiary, or any joint venture partner or other person or entity, for the purpose
of financing the activities of or business with any person, or in any country or territory, that currently is the subject to any
U.S. sanctions administered by OFAC or in any other manner that will result in a violation by any person (including any person
participating in the transaction whether as underwriter, advisor, investor or otherwise) of U.S. sanctions administered by OFAC.
(nn)
Brokers. Except pursuant to this Agreement, there is no broker, finder or other party that is entitled
to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated
by this Agreement.
(oo)
Forward-Looking Statements. Each financial or operational projection or other “forward-looking statement”
(as defined by Section 27A of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement, the
Time of Sale Prospectus or the Prospectus (i) was so included by the Company in good faith and with reasonable basis after
due consideration by the Company of the underlying assumptions, estimates and other applicable facts and circumstances and (ii) is
accompanied by meaningful cautionary statements identifying those factors that could cause actual results to differ materially
from those in such forward-looking statement. No such statement was made with the knowledge of an executive officer or director
of the Company that is was false or misleading.
(pp)
Emerging Growth Company Status. Since the date the Registration Statement was initially filed with the
Commission the Company has been, and the Company is, an “emerging growth company,” as defined in Section 2(a)
of the Securities Act (an “Emerging Growth Company”).
(qq)
Communications. The Company (i) has not alone engaged in communications with potential investors
in reliance on Section 5(d) of the Securities Act and (ii) has not authorized anyone other than the Representative to
engage in such communications; the Company reconfirms that the Representative has been authorized to act on its behalf in undertaking
Marketing Materials, Section 5(d) Oral Communications and Section 5(d) Written Communications; as of the Applicable Time,
each Permitted Section 5(d) Communication, when considered together with the Time of Sale Prospectus, did not, as of the Applicable
Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; and each Permitted Section 5(d) Communication,
if any, does not, as of the date hereof, conflict with the information contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus.
(rr)
Clinical Data and Regulatory Compliance. The nonclinical studies and clinical trials, (collectively, “Studies”)
that are described in, or the results of which are described or referred to in, the Registration Statement, the Time of Sale Prospectus
or the Prospectus were and, if still pending, are being conducted in all material respects in accordance with the protocols, procedures
and controls designed and approved for such Studies and with standard medical and scientific research procedures; each description
of the results of such Studies is accurate and complete in all material respects and fairly presents the data derived from such
Studies, and the Company and its Subsidiaries have no knowledge of any other studies the results of which are inconsistent with,
or otherwise call into question, the results described or referred to in the Registration Statement, the Time of Sale Prospectuses
or the Prospectus; the Company and its Subsidiaries are and have been in compliance with all statutes, laws, ordinances, rules
and regulations applicable to the operation and business of the Company and its Subsidiaries including, but not limited to those
for the ownership, testing, development, manufacture, packaging, processing, use, labeling, storage, or disposal of any product
manufactured by or on behalf of the Company, including without limitation, the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
§ 301, et seq., and the amendments thereto (the “Applicable Laws”). The Company and its Subsidiaries have
made all such filings and obtained all such approvals as may be required by the U.S. Food and Drug Administration (“FDA”)
and from any other federal, state, local or foreign regulatory authority with jurisdiction over the products being developed by
the Company and its Subsidiaries (collectively, the “Regulatory Agencies”); neither the Company nor any of its
Subsidiaries has received any notice of, or correspondence from, any Regulatory Agency requiring the termination, suspension or
modification of any clinical trials that are described or referred to in the Registration Statement, the Time of Sale Prospectus
or the Prospectus; and the Company and its Subsidiaries have each operated and currently are in compliance in all material respects
with all Applicable laws, rules, and regulations of the Regulatory Agencies. The Company and its Subsidiaries, are and have been
in compliance with all statutes, laws, ordinances, rules and regulations applicable to the operation and business of the Company
and its Subsidiaries including, but not limited to those for the ownership, testing, development, manufacture, packaging, processing,
use, labeling, storage, or disposal of any product manufactured by or on behalf of the Company, including without limitation, the
Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq., the amendments thereto and the regulations promulgated thereunder,
in all material respects. Neither the Company nor its Subsidiaries have received any written notice of adverse finding, warning
letter or other written correspondence or notice from the FDA or any other governmental entity alleging or asserting noncompliance
with any Applicable Laws; the Company has not received written notice of any ongoing claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any governmental entity or third party alleging that any product,
operation or activity is in violation of any Applicable Laws or has any knowledge that any such governmental entity or third party
is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding, nor, to the best of the Company’s
knowledge, has there been any noncompliance with or violation of any Applicable Laws by the Company or its Subsidiaries that could
reasonably be expected to require the issuance of any such written notice or result in an investigation, corrective action, or
enforcement action by the FDA or similar governmental entity; neither the Company nor its Subsidiaries has received written notice
that any governmental entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any permits or
has any knowledge that any such governmental entity has threatened or is considering such action; and the Company and its Subsidiaries
have filed, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments as required by any applicable laws and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were complete, correct and not misleading on the date filed (or were
corrected or supplemented by a subsequent submission), in all material respects. Neither the Company, its Subsidiaries and, to
the Company’s knowledge, any of its directors, officers, employees or agents, has made, or caused the making of, any false
statements on, or material omissions from, any other records or documentation prepared or maintained to comply with the requirements
of the FDA or any other governmental entity.
(ss)
Cybersecurity and Data Privacy. The Company’s information technology assets and equipment, computers,
systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are
adequate for, and operate and perform in all material respects as required in connection with the operation of the business of
the Company as currently conducted, and to the knowledge of the Company are free and clear of all material bugs, errors, defects,
Trojan horses, time bombs, malware and other corruptants. The Company has implemented and maintained commercially reasonable
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity,
continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive,
confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there have been
no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without
material cost or liability or the duty to notify any other person, nor any incidents under internal review or investigations relating
to the same. The Company is presently in material compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data
from unauthorized use, access, misappropriation or modification. The Company has taken all necessary actions to comply with
the European Union General Data Protection Regulation and all other applicable laws and regulations with respect to Personal Data
that have been announced as of the date hereof as becoming effective within 12 months after the date hereof, and for which any
non-compliance with same would be reasonably likely to create a material liability.
(tt)
Market Capitalization. As of the close of trading on NASDAQ on July 14, 2020, the aggregate market value
of the outstanding voting and non-voting common equity (as defined in Rule 405) of the Company held by persons other than
affiliates of the Company (pursuant to Rule 144 of the Securities Act, those that directly, or indirectly through one or more
intermediaries, control, or are controlled by, or are under common control with, the Company) (the “Non-Affiliate Shares”),
was approximately $76,793,535 (calculated by multiplying (x) the price at which the common equity of the Company was last
sold on NASDAQ on July 14, 2020 by (y) the number of Non-Affiliate Shares outstanding on July 14, 2020). The Company is not
a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months
previously and if it has been a shell company at any time previously, has filed current “Form 10 information” (as defined
in Instruction 4 to General Instruction I.B.6. of Form S-3) with the Commission at least 12 calendar months previously reflecting
its status as an entity that is not a shell company.
(uu)
No Contract Terminations. Neither the Company nor any of its Subsidiaries has sent or received any communication
regarding termination of, or intent not to renew, any of the contracts or agreements referred to or described in the Time of Sale
Prospectus, the Prospectus or any free writing prospectus, or referred to or described in, or filed as an exhibit to, the Registration
Statement, or any document incorporated by reference therein, and no such termination or non-renewal has been threatened by the
Company or any of its Subsidiaries or, to the Company’s knowledge, any other party to any such contract or agreement, which
threat of termination or non-renewal has not been rescinded as of the date hereof.
(vv)
No Rights to Purchase Preferred Stock. The issuance and sale of the Offered Shares as contemplated hereby
will not cause any holder of any shares of capital stock, securities convertible into or exchangeable or exercisable for capital
stock or options, warrants or other rights to purchase capital stock or any other securities of the Company to have any right to
acquire any shares of preferred stock of the Company.
(ww)
Director Independence. Each of the independent directors (or independent director nominees, once appointed,
if applicable) named in the Registration Statement, the Time of Sale Prospectus and Prospectus satisfies the independence standards
established by NASDAQ and, with respect to members of the Company’s audit committee, the enhanced independence standards
contained in Rule 10A-3(b)(1) promulgated by the Commission under the Exchange Act.
(xx)
Dividend Restrictions. No Subsidiary of the Company is prohibited or restricted, directly or indirectly,
from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s equity securities
or from repaying to the Company or any other Subsidiary of the Company any amounts that may from time to time become due under
any loans or advances to such Subsidiary from the Company or from transferring any property or assets to the Company or to any
other Subsidiary.
Any certificate signed by any officer of
the Company or any of its Subsidiaries and delivered to any Underwriter or to counsel for the Underwriters in connection with the
offering, or the purchase and sale, of the Offered Shares shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
The Company has a reasonable basis for making
each of the representations set forth in this Section 1. The Company acknowledges that the Underwriters and, for purposes of the
opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel
to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such
reliance.
Section 2. Purchase, Sale and Delivery
of the Offered Shares.
(a)
The Firm Shares. Upon the terms herein set forth, the Company agrees to issue and sell to the several
Underwriters an aggregate of 2,173,914 Firm Shares. On the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase
from the Company the respective number of Firm Shares set forth opposite their names on Schedule A. The purchase price per
Firm Share to be paid by the several Underwriters to the Company shall be $9.40 per share.
(b)
The First Closing Date. Delivery of certificates for the Firm Shares to be purchased by the Underwriters
and payment therefor shall be made at the offices of BTIG, 65 East 55th Street, New York, NY 10022 (or such other place
as may be agreed to by the Company and the Representative) at 9:00 a.m. New York City time, on July 20, 2020, or such other
time and date not later than 1:30 p.m. New York City time, on July 20, 2020 as the Representative shall designate by notice
to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges
that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled
include, but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of
an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 11.
(c)
The Optional Shares; Option Closing Date. In addition, on the basis of the representations, warranties
and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 326,086 Optional Shares from the
Company at the purchase price per share to be paid by the Underwriters for the Firm Shares, less an amount per share equal to any
dividend or distribution declared by the Company and payable on the Firm Shares but not payable on Optional Shares. The option
granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representative to the
Company, which notice may be given at any time within 45 days from the date of this Agreement. Such notice shall set forth
(i) the aggregate number of Optional Shares as to which the Underwriters are exercising the option and (ii) the time,
date and place at which certificates for the Optional Shares will be delivered (which time and date may be simultaneous with, but
not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date,
the term “First Closing Date” shall refer to the time and date of delivery of certificates for the Firm Shares
and such Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option
Closing Date,” shall be determined by the Representative and shall not be earlier than three or later than five full
business days after delivery of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter agrees, severally
and not jointly, to purchase the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the Representative
may determine) that bears the same proportion to the total number of Optional Shares to be purchased as the number of Firm Shares
set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares. The Representative
may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
(d)
Public Offering of the Offered Shares. The Representative hereby advises the Company that the Underwriters
intend to offer for sale to the public, initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, their respective portions of the Offered Shares as soon after this Agreement has been executed as the Representative,
in its sole judgment, has determined is advisable and practicable.
(e)
Payment for the Offered Shares. (i) Payment for the Offered Shares shall be made at the First Closing
Date (and, if applicable, at each Option Closing Date) by wire transfer of immediately available funds to the order of the Company.
(ii) It is understood that the Representative
has been authorized, for its own account and the accounts of the several Underwriters, to accept delivery of and receipt for, and
make payment of the purchase price for, the Firm Shares and any Optional Shares the Underwriters have agreed to purchase. BTIG,
individually and not as the Representative of the Underwriters, may (but shall not be obligated to) make payment for any Offered
Shares to be purchased by any Underwriter whose funds shall not have been received by the Representative by the First Closing Date
or the applicable Option Closing Date, as the case may be, for the account of such Underwriter, but any such payment shall not
relieve such Underwriter from any of its obligations under this Agreement.
(f)
Delivery of the Offered Shares. The Company shall deliver, or cause to be delivered through the facilities
of the Depository Trust Company (“DTC”), including through the full fast transfer or DWAC programs, unless the
Representative otherwise instructs, to the Representative for the accounts of the several Underwriters the Firm Shares to be sold
by them at the First Closing Date, against release of a wire transfer of immediately available funds for the amount of the purchase
price therefor. The Company shall also deliver, or cause to be delivered through the facilities of DTC, including through the full
fast transfer or DWAC programs, unless the Representative otherwise instructs, to the Representative for the accounts of the several
Underwriters, the Optional Shares the Underwriters have agreed to purchase at the First Closing Date or the applicable Option Closing
Date, as the case may be, against the irrevocable release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriters.
Section 3. Additional Covenants of the
Company.
The Company further covenants and
agrees with each Underwriter as follows:
(a)
Delivery of Registration Statement, Time of Sale Prospectus and Prospectus. The Company shall furnish
to you in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of
this Agreement and during the period when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered
(whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales
of the Offered Shares, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto
or to the Registration Statement as you may reasonably request.
(b)
Representative’s Review of Proposed Amendments and Supplements. During the period when a prospectus
relating to the Offered Shares is required by the Securities Act to be delivered (whether physically or through compliance with
Rule 172 under the Securities Act or any similar rule), the Company (i) will furnish to the Representative for review, a reasonable
period of time prior to the proposed time of filing of any proposed amendment or supplement to the Registration Statement, a copy
of each such amendment or supplement and (ii) will not amend or supplement the Registration Statement (including any amendment
or supplement through incorporation of any report filed under the Exchange Act) without the Representative’s prior written
consent. Prior to amending or supplementing any preliminary prospectus, the Time of Sale Prospectus or the Prospectus (including
any amendment or supplement through incorporation of any report filed under the Exchange Act), the Company shall furnish to the
Representative for review, a reasonable amount of time prior to the time of filing or use of the proposed amendment or supplement,
a copy of each such proposed amendment or supplement. The Company shall not file or use any such proposed amendment or supplement
without the Representative’s prior written consent. The Company shall file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c)
Free Writing Prospectuses. The Company shall furnish to the Representative for review, a reasonable amount
of time prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or
supplement thereto prepared by or on behalf of, used by, or referred to by the Company, and the Company shall not file, use or
refer to any proposed free writing prospectus or any amendment or supplement thereto without the Representative’s prior written
consent. The Company shall furnish to each Underwriter, without charge, as many copies of any free writing prospectus prepared
by or on behalf of, used by or referred to by the Company as such Underwriter may reasonably request. If at any time when a prospectus
is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities
Act or any similar rule) in connection with sales of the Offered Shares (but in any event if at any time through and including
the First Closing Date) there occurred or occurs an event or development as a result of which any free writing prospectus prepared
by or on behalf of, used by, or referred to by the Company conflicted or would conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances prevailing at such time, not misleading, the
Company shall promptly amend or supplement such free writing prospectus to eliminate or correct such conflict so that the statements
in such free writing prospectus as so amended or supplemented will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at such time,
not misleading, as the case may be; provided, however, that prior to amending or supplementing any such free writing prospectus,
the Company shall furnish to the Representative for review, a reasonable amount of time prior to the proposed time of filing or
use thereof, a copy of such proposed amended or supplemented free writing prospectus, and the Company shall not file, use or refer
to any such amended or supplemented free writing prospectus without the Representative’s prior written consent.
(d)
Filing of Underwriter Free Writing Prospectuses. The Company shall not take any action that would result
in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a
free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required
to file thereunder. Each Underwriter severally and not jointly covenants with the Company not to take any action that would result
in the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of such Underwriter that otherwise would not, but for such actions, be required to be filed by the Company
under Rule 433(d).
(e)
Amendments and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is being used to
solicit offers to buy the Offered Shares at a time when the Prospectus is not yet available to prospective purchasers, and any
event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus so
that the Time of Sale Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances when delivered to a prospective purchaser, not misleading,
or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information
contained in the Registration Statement, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Time of Sale Prospectus to comply with applicable law, the Company shall (subject to Section 3(b) and Section 3(c) hereof)
promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request,
either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended
or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances when delivered to a prospective purchaser, not misleading or so
that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the information contained in the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f)
Certain Notifications and Required Actions. After the date of this Agreement, the Company shall promptly
advise the Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information
from, the Commission; (ii) the time and date of any filing of any post-effective amendment to the Registration Statement or
any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus;
(iii) the time and date that any post-effective amendment to the Registration Statement becomes effective; and (iv) the issuance
by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus or the Prospectus or of any order
preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the
Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Shares from any securities exchange
upon which they are listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings
for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its best efforts
to obtain the lifting of such order at the earliest possible moment. Additionally, the Company agrees that it shall comply with
all applicable provisions of Rule 424(b), Rule 433 and Rule 430B under the Securities Act and will use its reasonable efforts
to confirm that any filings made by the Company under Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(g)
Amendments and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur
or condition exist as a result of which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include
an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities
Act or any similar rule) to a purchaser, not misleading, or if in the opinion of the Representative or counsel for the Underwriters
it is otherwise necessary to amend or supplement the Prospectus to comply with applicable law, the Company agrees (subject to Section
3(b) and Section 3(c)) hereof to promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters
and to any dealer upon request, amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances when the Prospectus is delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser, not misleading or so that the Prospectus,
as amended or supplemented, will comply with applicable law. Neither the Representative’s consent to, nor delivery of, any
such amendment or supplement shall constitute a waiver of any of the Company’s obligations under Section 3(b) or Section
3(c).
(h)
Blue Sky Compliance. The Company shall cooperate with the Representative and counsel for the Underwriters
to qualify or register the Offered Shares for sale under (or obtain exemptions from the application of) the state securities or
blue sky laws or (or foreign laws) of those jurisdictions designated by the Representative, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Offered Shares.
The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service
of process in any such jurisdiction where it is not presently qualified. The Company will advise the Representative promptly of
the suspension of the qualification or registration of (or any such exemption relating to) the Offered Shares for offering, sale
or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance
of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment.
(i)
Use of Proceeds. The Company shall apply the net proceeds from the sale of the Offered Shares sold by
it in the manner described under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus
and the Prospectus.
(j)
Transfer Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent
for the Shares.
(k)
Earnings Statement. The Company will make generally available to its security holders and to the Representative
as soon as practicable an earnings statement (which need not be audited) covering a period of at least twelve months beginning
with the first fiscal quarter of the Company commencing after the date of this Agreement that will satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(l)
Continued Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange
Act so as to permit the completion of the distribution of the Offered Shares as contemplated by this Agreement, the Registration
Statement, the Time of Sale Prospectus and the Prospectus. Without limiting the generality of the foregoing, the Company will,
during the period when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule), file on a timely basis with the Commission and
the NASDAQ all reports and documents required to be filed under the Exchange Act.
(m)
Listing. The Company will use its best efforts to list, subject to notice of issuance, the Offered Shares
on the NASDAQ.
(n)
Company to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet. If requested
by the Representative, the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective
date of this Agreement, to the Representative an “electronic Prospectus” to be used by the Underwriters in connection
with the offering and sale of the Offered Shares. As used herein, the term “electronic Prospectus” means a form
of Time of Sale Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall
be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the Representative
and the other Underwriters to offerees and purchasers of the Offered Shares; (ii) it shall disclose the same information as
the paper Time of Sale Prospectus, except to the extent that graphic and image material cannot be disseminated electronically,
in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative
description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper
format or an electronic format, satisfactory to BTIG, that will allow investors to store and have continuously ready access to
the Time of Sale Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the
Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed
pursuant to EDGAR or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking
that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted
promptly, without charge, a paper copy of the Time of Sale Prospectus.
(o)
Agreement Not to Offer or Sell Additional Shares. During the period commencing on and including the date
hereof and continuing through and including the 90th day following the date of the Prospectus (such period, as extended as described
below, being referred to herein as the “Lock-up Period”), the Company will not, without the prior written consent
of BTIG (which consent may be withheld in its sole discretion), directly or indirectly: (i) sell, offer to sell, contract to sell
or lend any Shares or Related Securities (as defined below); (ii) effect any short sale, or establish or increase any “put
equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any “call equivalent
position” (as defined in Rule 16a-1(b) under the Exchange Act) of any Shares or Related Securities; (iii) pledge, hypothecate
or grant any security interest in any Shares or Related Securities; (iv) in any other way transfer or dispose of any Shares
or Related Securities; (v) enter into any swap, hedge or similar arrangement or agreement that transfers, in whole or in part,
the economic risk of ownership of any Shares or Related Securities, regardless of whether any such transaction is to be settled
in securities, in cash or otherwise; (vi) announce the offering of any Shares or Related Securities; (vii) file any registration
statement under the Securities Act in respect of any Shares or Related Securities (other than as contemplated by this Agreement
with respect to the Offered Shares); or (viii) publicly announce the intention to do any of the foregoing; provided, however,
that the Company may (A) effect the transactions contemplated hereby, (B) issue Shares, options to purchase Shares or restricted
stock units, or issue Shares upon exercise of options or settlement of restricted stock units, pursuant to any stock option, stock
bonus or other stock plan or arrangement described in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
provided that any directors or officers who are recipients thereof have provided a signed Lock-Up Agreement in the form attached
as Exhibit A hereto, (C) issue Shares pursuant to the conversion or exchange of convertible or exchangeable securities
or exercise of warrants outstanding on the date of this Agreement, and (D) file a registration statement on Form S-8 to register
Shares issuable pursuant to the terms of stock option, stock bonus or other stock plan or inducement arrangement. For purposes
of the foregoing, “Related Securities” shall mean any options or warrants or other rights to acquire Shares
or any securities exchangeable or exercisable for or convertible into Shares, or to acquire other securities or rights ultimately
exchangeable or exercisable for, or convertible into, Shares.
(p)
Future Reports to the Representative. During the period of three years hereafter, the Company will furnish
to the Representative, c/o BTIG, LLC, at 65 East 55th Street, New York, New York 10022, Attention: Equity Capital Markets:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements of income, stockholders’ equity and cash flows for
the year then ended and the opinion thereon of the Company’s independent public or certified public accountants; (ii) as
soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission or any securities exchange; and (iii)
as soon as available, copies of any report or communication of the Company furnished or made available generally to holders of
its capital stock; provided, however, that the requirements of this Section 3(p) shall be satisfied to the extent that such
reports, statement, communications, financial statements or other documents are available on EDGAR.
(q)
Investment Limitation. The Company shall not invest or otherwise use the proceeds received by the Company
from its sale of the Offered Shares in such a manner as would require the Company or any of its Subsidiaries to register as an
investment company under the Investment Company Act.
(r)
No Stabilization or Manipulation; Compliance with Regulation M. The Company will not take, and will ensure
that no affiliate of the Company will take, directly or indirectly, any action designed to or that might cause or result in stabilization
or manipulation of the price of the Shares or any reference security with respect to the Shares, whether to facilitate the sale
or resale of the Offered Shares or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all
applicable provisions of Regulation M.
(s)
Enforce Lock-Up Agreements. During the Lock-up Period, the Company will enforce all agreements between
the Company and any of its security holders that restrict or prohibit, expressly or in operation, the offer, sale or transfer of
Shares or Related Securities or any of the other actions restricted or prohibited under the terms of the form of Lock-up Agreement.
In addition, the Company will direct the transfer agent to place stop transfer restrictions upon any such securities of the Company
that are bound by such “lock-up” agreements for the duration of the periods contemplated in such agreements, including,
without limitation, “lock-up” agreements entered into by the Company’s officers, directors and certain stockholders
pursuant to Section 6(l) hereof.
(t)
Company to Provide Interim Financial Statements. Prior to the First Closing Date and each applicable Option
Closing Date, the Company will furnish the Underwriters, as soon as they have been prepared by or are available to the Company,
a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most
recent financial statements appearing in the Registration Statement and the Prospectus.
(u)
Amendments and Supplements to Permitted Section 5(d) Communications. If at any time following the distribution
of any Permitted Section 5(d) Communication, there occurred or occurs an event or development as a result of which such Permitted
Section 5(d) Communication included or would include an untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent
time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense,
such Permitted Section 5(d) Communication to eliminate or correct such untrue statement or omission.
(v)
Emerging Growth Company Status. The Company will promptly notify the Representative if the Company ceases
to be an Emerging Growth Company at any time prior to the later of (i) the time when a prospectus relating to the Offered Shares
is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities
Act or any similar rule) and (ii) the expiration of the Lock-Up Period (as defined herein).
(w)
Announcement Regarding Lock-ups. The Company agrees to announce the Underwriters’ intention to release
any director or “officer” (within the meaning of Rule 16a-1(f) under the Exchange Act) of the Company from any of the
restrictions imposed by any Lock-Up Agreement, by issuing, through a major news service, a press release in form and substance
satisfactory to the Representative promptly following the Company’s receipt of any notification from the Representative in
which such intention is indicated, but in any case not later than the close of the third business day prior to the date on which
such release or waiver is to become effective; provided, however, that nothing shall prevent the Representative, on behalf of the
Underwriters, from announcing the same through a major news service, irrespective of whether the Company has made the required
announcement; and provided, further, that no such announcement shall be made of any release or waiver granted solely
to permit a transfer of securities that is not for consideration and where the transferee has agreed in writing to be bound by
the terms of a Lock-Up Agreement in the form set forth as Exhibit A hereto.
The Representative, on behalf of the several
Underwriters, may, in its sole discretion, waive in writing the performance by the Company of any one or more of the foregoing
covenants or extend the time for their performance.
Section 4. Payment of Expenses. The
Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and
in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance
and delivery of the Offered Shares (including all printing and engraving costs), (ii) all fees and expenses of the registrar
and transfer agent of the Shares, (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Offered Shares to the Underwriters, (iv) all fees and expenses of the Company’s counsel, independent
public or certified public accountants and other advisors, (v) all costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), the Time of Sale Prospectus, the Prospectus, each free writing prospectus prepared by or
on behalf of, used by, or referred to by the Company, and each preliminary prospectus, each Permitted Section 5(d) Communication,
and all amendments and supplements thereto, and this Agreement, (vi) all filing fees and other expenses incurred in connection
with qualification of the Offered Shares for sale under the laws of such jurisdictions as BTIG designates and the preparation and
printing of memoranda relating thereto, (vii) costs and expenses related to the review of the offering by FINRA, including
all filing fees, (viii) the costs and expenses of the Company relating to investor presentations on any “road show”,
any Permitted Section 5(d) Communication or any Section 5(d) Oral Communication undertaken in connection with the offering of the
Offered Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road
show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives,
employees and officers of the Company and any such consultants, (ix) the costs associated with post-closing advertising the offering
in the national editions of the Wall Street Journal and New York Times, (x) the costs associated with one set of bound volumes
of the public offering materials as well as commemorative mementos and lucite tombstones, each of which the Company or its designee
shall provide within a reasonable time after the First Closing in such quantities as BTIG may reasonably request, in an amount
not to exceed $5,000, (xi) the fees and expenses associated with listing the Offered Shares on NASDAQ, and (xii) fees, disbursements
and expenses of counsel to the underwriters not to exceed $75,000. Except as provided in this Section
4 or in Section 5, Section 7, Section
9 or Section 10 hereof, the Underwriters shall pay their own expenses, including
the fees and disbursements of their counsel and all travel, lodging and other expenses of the underwriters or any of their employees
incurred by them in connection with any road show. The Representative may deduct from the net proceeds of the offering payable
to the Company on the First Closing Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company
to the Underwriters, less the Advance (as such term is defined in Section 7 hereof).
Section 5. Non-Accountable Expense Allowance.
The Company further agrees that, in addition to the expenses payable pursuant to Section 4, on the First Closing Date it shall
pay to the Representative, by deduction from the net proceeds of the offering contemplated herein, a non-accountable expense allowance
equal to one percent (1%) of the gross proceeds received by the Company from the sale of the Firm Shares (excluding the Optional
Shares), provided, however, that in the event that the offering is terminated, the Company agrees to reimburse the Underwriters
pursuant to Section 7 hereof.
Section 6. Conditions of the Obligations
of the Underwriters. The respective obligations of the several Underwriters hereunder to purchase and pay for the Offered Shares
as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject
to the accuracy of the representations and warranties on the part of the Company set forth in Section
1 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as
of each Option Closing Date as though then made, to the timely performance by the Company of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a)
Comfort Letter. On the date hereof, the Representative shall have received from Marcum LLP, independent
registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representative, containing statements and information of the type ordinarily included in accountant’s
“comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor
bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration
Statement, the Time of Sale Prospectus, and each free writing prospectus, if any.
(b)
Compliance with Registration Requirements; No Stop Order; No Objection from FINRA.
(i) The Company shall have filed the Prospectus
with the Commission (including the information previously omitted from the Registration Statement pursuant to Rule 430B under the
Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall
have filed a post-effective amendment to the Registration Statement containing the information previously omitted from the Registration
Statement pursuant to such Rule 430B, and such post-effective amendment shall have become effective.
(ii) No stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings
for such purpose shall have been instituted or threatened by the Commission.
(iii) If a filing has been made with FINRA,
FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(c)
No Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement
and through and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date,
each Option Closing Date:
(i) in the judgment of the Representative
there shall not have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its Subsidiaries
by any “nationally recognized statistical rating organization” as that term is used in Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act.
(d)
Opinion of Counsel for the Company. On each of the First Closing Date and each Option Closing Date the
Representative shall have received the opinion of Sichenzia Ross Ference LLP, counsel for the Company, dated as of such date, in
form and substance satisfactory to the Representative.
(e)
Opinion of IP Counsel for the Company. On each of the First Closing Date and each Option Closing Date,
the Representative shall have received the opinion of Coastal Patent, counsel for the Company with respect to intellectual property,
dated as of such date, in form and substance satisfactory to the Representative.
(f)
Opinion of Counsel for the Underwriters. On each of the First Closing Date and each Option Closing Date,
the Representative shall have received the opinion of Dorsey & Whitney LLP, counsel for the Underwriters in connection with
the offer and sale of the Offered Shares, dated as of such date, in form and substance satisfactory to the Representative.
(g)
Officers’ Certificate. On each of the First Closing Date and each Option Closing Date, the Representative
shall have received a certificate executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer
of the Company, dated as of such date, to the effect set forth in Section 6(b)(ii) and
further to the effect that:
(i) for the period from and including the
date of this Agreement through and including such date, there has not occurred any Material Adverse Change;
(ii) the representations, warranties and covenants
of the Company set forth in Section 1 of this Agreement are true and correct with the same force and effect as though expressly
made on and as of such date; and
(iii) the Company has complied with all the
agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(h)
CSO Certificate. On each of the First Closing Date and each Option Closing Date, the Representative shall
have received a certificate executed by the Chief Scientific Officer of the Company, solely in his capacity as such, dated as of
such date, in form and substance satisfactory to the Representative.
(i)
Bring-down Comfort Letter. On each of the First Closing Date and each Option Closing Date the Representative
shall have received from Marcum LLP, independent registered public accountants for the Company, a letter dated such date, in form
and substance satisfactory to the Representative, which letter shall: (i) reaffirm the statements made in the letter furnished
by them pursuant to Section 6(a), except that the specified date referred to therein for the carrying out of procedures shall
be no more than three business days prior to the First Closing Date or the applicable Option Closing Date, as the case may be;
and (ii) cover certain financial information contained in the Prospectus.
(j)
Lock-Up Agreements. On or prior to the date hereof, the Company shall have furnished to the Representative
an agreement in the form of Exhibit A hereto from each of the persons listed on Exhibit B hereto, and each such agreement
shall be in full force and effect on each of the First Closing Date and each Option Closing Date.
(k)
Rule 462(b) Registration Statement. In the event that a Rule 462(b) Registration Statement is
filed in connection with the offering contemplated by this Agreement, such Rule 462(b) Registration Statement shall have been
filed with the Commission on the date of this Agreement and shall have become effective automatically upon such filing.
(l)
Additional Documents. On or before each of the First Closing Date and each Option Closing Date, the Representative
and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably request for
the purposes of enabling them to pass upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence
the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained;
and all proceedings taken by the Company in connection with the issuance and sale of the Offered Shares as contemplated herein
and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
If any condition specified in this Section
6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice from
BTIG to the Company at any time on or prior to the First Closing Date and, with respect to the Optional Shares, at any time on
or prior to the applicable Option Closing Date, which termination shall be without liability on the part of any party to any other
party, except that Section 4, Section 5, Section 7, Section 9 and Section
10 shall at all times be effective and shall survive such termination.
Section 7. Reimbursement of Underwriters’
Expenses. If this Agreement is terminated by the Representative pursuant to Section 6, Section 11 or Section 12,
or if the sale to the Underwriters of the Offered Shares on the First Closing Date is not consummated because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees
to reimburse the Representative and the other Underwriters (or such Underwriters as have terminated this Agreement with respect
to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representative
and the Underwriters in connection with the proposed purchase and the offering and sale of the Offered Shares, including, but not
limited to, fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges, less
the $40,000 advance for accountable expenses previously paid by the Company to the Representative (the “Advance”).
Any advance received by the Representative will be reimbursed to the Company to the extent not actually incurred in compliance
with FINRA Rule 5110(f)(2)(C).
Section 8. Effectiveness of this Agreement.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Section 9. Indemnification.
(a)
Indemnification of the Underwriters. The Company agree to indemnify and hold harmless each Underwriter,
its affiliates, directors, officers, employees and agents, and each person, if any, who controls any Underwriter within the meaning
of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter
or such affiliate, director, officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange
Act, other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Offered Shares
have been offered or sold or at common law or otherwise (including in settlement of any litigation, if such settlement is effected
with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement
or alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale Prospectus, any free writing
prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act,
any Marketing Material, any Section 5(d) Written Communication or the Prospectus (or any amendment or supplement to the foregoing),
or the omission or alleged omission to state therein a material fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading; or (iii) any act or failure to act or any alleged act or failure
to act by any Underwriter in connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter
covered by clause (i) or (ii) above; and to reimburse each Underwriter and each such affiliate, director, officer, employee, agent
and controlling person for any and all expenses (including the fees and disbursements of counsel) as such expenses are incurred
by such Underwriter or such affiliate, director, officer, employee, agent or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however,
that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only
to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made
in reliance upon and in conformity with information relating to any Underwriter furnished to the Company by the Representative
in writing expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any such free
writing prospectus, any Marketing Material, any Section 5(d) Written Communication or the Prospectus (or any amendment or supplement
thereto), it being understood and agreed that the only such information consists of the information described in Section
9(b) below. The indemnity agreement set forth in this Section 9(a) shall be in addition
to any liabilities that the Company may otherwise have.
(b)
Indemnification of the Company, its Directors and Officers. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss,
claim, damage, liability or expense, as incurred, to which the Company, or any such director, officer or controlling person may
become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common
law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter),
insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or
is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement,
or any amendment thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company has used,
referred to or filed, or is required to file, pursuant to Rule 433 of the Securities Act, any Section 5(d) Written Communication
or the Prospectus (or any such amendment or supplement) or the omission or alleged omission to state therein a material fact necessary
in order to make the statements, in the light of the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, such preliminary prospectus, the Time of Sale Prospectus, such free writing prospectus, such
Section 5(d) Written Communication or the Prospectus (or any such amendment or supplement), in reliance upon and in conformity
with information relating to such Underwriter furnished to the Company by the Representative in writing expressly for use therein;
and to reimburse the Company, or any such director, officer or controlling person for any and all expenses (including the fees
and disbursements of counsel) as such expenses are incurred by the Company, or any such director, officer or controlling person
in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action. The Company hereby acknowledges that the only information that the Representative has furnished to the Company expressly
for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that
the Company has filed, or is required to file, pursuant to Rule 433(d) of the Securities Act, any Section 5(d) Written Communication
or the Prospectus (or any amendment or supplement to the foregoing) are the statements set forth in the first sentence of the third
paragraph under the caption “Underwriting,” the first two sentences of the first paragraph under the caption “Underwriting—Commission
and Expenses” and the first sentence of the first paragraph under the caption “Underwriting—Stabilization”
in the Preliminary Prospectus Supplement and the Final Prospectus Supplement. The indemnity agreement set forth in this Section
9(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c)
Notifications and Other Indemnification Procedures. Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party under this Section
9, notify the indemnifying party in writing of the commencement thereof, but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any indemnified party to the extent the indemnifying
party is not materially prejudiced as a proximate result of such failure and shall not in any event relieve the indemnifying party
from any liability that it may have otherwise than on account of this indemnity agreement. In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such
indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this Section 9
for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel (together
with local counsel), representing the indemnified parties who are parties to such action), which counsel (together with any local
counsel) for the indemnified parties shall be selected by BTIG (in the case of counsel for the indemnified parties referred to
in Section 9(a) above) or by the Company (in the case of counsel for the indemnified parties referred to in Section
9(b) above)) or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party, in each
of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party and shall be paid as they are
incurred.
(d)
Settlements. The indemnifying party under this Section 9 shall
not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss,
claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by Section 9(c) hereof, the indemnifying party shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been
a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or
consent includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of
such indemnified party.
Section 10. Contribution. If the indemnification
provided for in Section 9 is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred
to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand,
from the offering of the Offered Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters,
on the other hand, in connection with the offering of the Offered Shares pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total proceeds from the offering of the Offered Shares pursuant to this Agreement (before deducting
expenses) received by the Company, and the total underwriting discounts and commissions received by the Underwriters, in each case
as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the Offered Shares
as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall
be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters,
on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The amount paid or payable by a party as
a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 9(c), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section
9(c) with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section
10; provided, however, that no additional notice shall be required with respect to any action for which notice has been
given under Section 9(c) for purposes of indemnification.
The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 10 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this Section
10.
Notwithstanding the provisions of this Section
10, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions received
by such Underwriter in connection with the Offered Shares underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant
to this Section 10 are several, and not joint, in proportion to their respective underwriting
commitments as set forth opposite their respective names on Schedule A. For purposes of this Section
10, each affiliate, director, officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter
within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section 11. Default of One or More of the
Several Underwriters. If, on the First Closing Date or any Option Closing Date any one or more of the several Underwriters
shall fail or refuse to purchase Offered Shares that it or they have agreed to purchase hereunder on such date, and the aggregate
number of Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed
10% of the aggregate number of the Offered Shares to be purchased on such date, the Representative may make arrangements satisfactory
to the Company for the purchase of such Offered Shares by other persons, including any of the Underwriters, but if no such arrangements
are made by such date, the other Underwriters shall be obligated, severally and not jointly, in the proportions that the number
of Firm Shares set forth opposite their respective names on Schedule A bears to the aggregate number of Firm Shares
set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representative
with the consent of the non-defaulting Underwriters, to purchase the Offered Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If, on the First Closing Date or any Option Closing Date any one or more
of the Underwriters shall fail or refuse to purchase Offered Shares and the aggregate number of Offered Shares with respect to
which such default occurs exceeds 10% of the aggregate number of Offered Shares to be purchased on such date, and arrangements
satisfactory to the Representative and the Company for the purchase of such Offered Shares are not made within 48 hours after such
default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Section
4, Section 5, Section 7, Section
9 and Section 10 shall at all times be effective and shall survive such termination.
In any such case either the Representative or the Company shall have the right to postpone the First Closing Date or the applicable
Option Closing Date, as the case may be, but in no event for longer than seven days in order that the required changes, if any,
to the Registration Statement and the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter”
shall be deemed to include any person substituted for a defaulting Underwriter under this Section
11. Any action taken under this Section 11 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this Agreement.
Section 12. Termination of this Agreement.
Prior to the purchase of the Firm Shares by the Underwriters on the First Closing Date, this Agreement may be terminated by BTIG
by notice given to the Company if at any time: (i) trading or quotation in any of the Company’s securities shall have
been suspended or limited by the Commission or by NASDAQ, or trading in securities generally on either NASDAQ or the NYSE shall
have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges;
(ii) a general banking moratorium shall have been declared by any of federal, New York or California authorities; (iii) there
shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any substantial change or development involving a prospective substantial
change in United States’ or international political, financial or economic conditions, as in the judgment of BTIG is material
and adverse and makes it impracticable to market the Offered Shares in the manner and on the terms described in the Time of Sale
Prospectus or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of BTIG there shall
have occurred any Material Adverse Change; or (v) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident
or other calamity of such character as in the judgment of BTIG may interfere materially with the conduct of the business and operations
of the Company regardless of whether or not such loss shall have been insured. Any termination pursuant to this Section
12 shall be without liability on the part of (a) the Company to any Underwriter, except that the Company shall be obligated
to reimburse the expenses of the Representative and the Underwriters pursuant to Section
4 or Section 7 hereof or (b) any Underwriter to the Company; provided,
however, that the provisions of Section 9 and Section
10 shall at all times be effective and shall survive such termination.
Section 13. No Advisory or Fiduciary Relationship.
The Company acknowledges and agrees that (a) the purchase and sale of the Offered Shares pursuant to this Agreement, including
the determination of the public offering price of the Offered Shares and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection
with the offering contemplated hereby and the process leading to such transaction, each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect
to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates
may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company
has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
Section 14. Representations and Indemnities
to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the
Company, of its officers, and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of its or their partners,
officers or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will
survive delivery of and payment for the Offered Shares sold hereunder and any termination of this Agreement.
Section 15. Notices. All notices or
other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and shall be delivered to:
| If to the Representative: |
BTIG, LLC |
| |
600 Montgomery Street, 6th Floor |
| |
San Francisco, CA 94111 |
| |
Telephone: (415) 248-2260 |
| |
Facsimile: (212) 588-6554 |
| |
Attention: Steven Druskin, General Counsel |
| |
Email: sdruskin@btig.com |
| |
|
| with copies to: |
Dorsey & Whitney LLP |
| |
51 West 52nd Street |
| |
New York, NY 10019 |
| |
Telephone: (212) 415-9214 |
| |
Facsimile: (212) 953-7201 |
| |
Attention: Anthony J. Marsico |
| |
Email: marsico.anthony@dorsey.com |
| |
|
| If to the Company: |
INmune Bio Inc. |
| |
1200 Prospect Street, Suite 525 |
| |
La Jolla, CA 92037 |
| |
Telephone: (858) 964-3720 |
| |
Attention: David J. Moss, CFO |
| |
Email: dmoss@immunebio.com |
| |
|
| with a copy to: |
Sichenzia Ross Ference LLP |
| |
1185 Avenue of the Americas, 37th Floor |
| |
New York, NY 10036 |
| |
Telephone: (212) 930-9700 |
| |
Facsimile: (212) 930-9725 |
| |
Attention: Marc Ross |
| |
Email: mross@srf.law |
Each party may change such address for notices
by sending to the other party to this Agreement written notice of a new address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an original to follow) on or
before 4:30 p.m., New York City time, on a business day or, if such day is not a business day, on the next succeeding business
day, (ii) on the next business day after timely delivery to a nationally-recognized overnight courier and (iii) on the business
day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
An electronic communication (“Electronic
Notice”) shall be deemed written notice for purposes of this Section 15 if sent to the electronic mail address specified
by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending Electronic
Notice receives confirmation of receipt by the receiving party (other than pursuant to auto-reply). Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
Section 16. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to
Section 11 hereof, and to the benefit of the affiliates, directors, officers, employees, agents and controlling persons
referred to in Section 9 and Section 10, and in each case their respective
successors, and no other person will have any right or obligation hereunder. The term “successors” shall not
include any purchaser of the Offered Shares as such from any of the Underwriters merely by reason of such purchase.
Section 17. Partial Unenforceability.
The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
Section 18. Governing Law Provisions.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements
made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the United
States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each case
located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each
party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment
of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address
set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or
other proceeding brought in any such court has been brought in an inconvenient forum.
Section 19. General Provisions. This
Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof; provided, however, that notwithstanding
anything to the contrary set forth herein, it is understood and agreed by the parties hereto that all other terms and conditions
of that certain engagement letter between the Company and BTIG, LLC, dated May 11, 2020, as the same may be amended and supplemented,
that are binding and enforceable against the Company and BTIG as set forth in Section 13 thereof (including, without limitation,
the terms and conditions set forth in Sections 4, 13, 18, 21 and 22 thereof), shall remain in full force and effect. This Agreement
may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit. The section headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges
that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions
hereof, including, without limitation, the indemnification provisions of Section 9 and
the contribution provisions of Section 10, and is fully informed regarding said provisions.
Each of the parties hereto further acknowledges that the provisions of Section 9 and Section
10 hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business
in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, each free writing prospectus and the Prospectus (and any amendments and supplements to the foregoing), as contemplated
by the Securities Act and the Exchange Act.
If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along
with all counterparts hereof, shall become a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
INMUNE BIO INC. |
| |
|
|
| |
By: |
/s/ David Moss |
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Name: David Moss |
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Title: CFO |
The foregoing Underwriting Agreement is
hereby confirmed and accepted by the Representative in New York, New York as of the date first above written.
BTIG, LLC
Acting individually and as Representative
of the several Underwriters named in
the attached Schedule A.
| BTIG, LLC |
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| By: |
/s/ KC Stone |
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Name: KC Stone |
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Title: Managing Director |
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Schedule A
| Underwriters | |
Number
of Firm
Shares to
be Purchased | |
| BTIG, LLC | |
| 2,010,870 | |
| National Securities Corporation | |
| 163,044 | |
| Total | |
| 2,173,914 | |
Schedule B
Free Writing Prospectuses Included
in the Time of Sale Prospectus
None.
Schedule C
Permitted Section 5(d) Communications
None.
Exhibit A
Form of Lock-up Agreement
July [__], 2020
BTIG, LLC
600 Montgomery Street, 6th
Floor
San Francisco, CA 94111
Dear Sirs:
The undersigned understands
that BTIG, LLC (the “Underwriter”), proposes to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with INmune Bio Inc., a corporation incorporated under the laws of the State of Nevada (the “Company”),
with respect to a public offering of the Company’s securities (the “Public Offering”).
To induce the Underwriter
to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that the undersigned will not, without
the prior written consent of the Underwriter, directly or indirectly, during the period commencing on the date hereof and ending
90 days after the date of the Underwriting Agreement relating to the Public Offering (the “Lock-Up Period”),
(1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any shares
of the Company’s common stock, par value $0.001 per share (the “Common Stock”), or any securities convertible
into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect
to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”);
(2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of
ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery
of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration of
any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into
any transaction, swap, hedge or other arrangement relating to any Lock-Up Securities.
Notwithstanding the
foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent
of the Underwriter in connection with (a) transfers of Lock-Up Securities as a bona fide gift, by will or intestacy or to
a family member or trust for the benefit of the undersigned or a family member (for purposes of this lock-up agreement, “family
member” means any relationship by blood, marriage or adoption, not more remote than first cousin); (b) transfers of Lock-Up
Securities to a charity or educational institution; (c) if the undersigned is a corporation, partnership, limited liability company
or other business entity, (i) any transfers of Lock-Up Securities to another corporation, partnership or other business entity
that controls, is controlled by or is under common control with the undersigned or (ii) distributions of Lock-Up Securities to
members, partners, stockholders, subsidiaries or affiliates (as defined in Rule 405 promulgated under the Securities Act of 1933,
as amended) of the undersigned; (d) if the undersigned is a trust, to a trustee or beneficiary of the trust; provided that
in the case of any transfer pursuant to the foregoing clauses (a), (b) (c) or (d), (i) any such transfer shall not involve
a disposition for value, (ii) each transferee shall sign and deliver to the Underwriter a lock-up agreement substantially in the
form of this lock-up agreement and (iii) no filing under Section 13 or Section 16(a) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), or other public announcement shall be required or shall be voluntarily made;
(e) the receipt by the undersigned from the Company of Common Stock upon the vesting of restricted stock awards or stock units
or upon the exercise of options to purchase the Company’s Common Stock issued under an equity incentive plan of the Company
or an employment arrangement described in the Pricing Prospectus (as defined in the Underwriting Agreement) (the “Plan
Shares”) or the transfer of Common Stock or any securities convertible into Common Stock to the Company upon a vesting
event of the Company’s securities or upon the exercise of options to purchase the Company’s securities, in each case
on a “cashless” or “net exercise” basis or to cover tax obligations of the undersigned in connection with
such vesting or exercise, but only to the extent such right expires during the Lock-up Period, provided that no filing under
Section 13 or Section 16(a) of the Exchange Act or other public announcement shall be required or shall be voluntarily made within
the Lock-Up Period and, provided further, that the Plan Shares shall be subject to the terms of this lock-up agreement;
(f) the transfer of Lock-Up Securities pursuant to agreements described in the Company’s Annual Report on Form 10-K for the
year ended December 31, 2019 or the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, under which
the Company has the option to repurchase such securities or a right of first refusal with respect to the transfer of such securities,
provided that if the undersigned is required to file a report under Section 13 or Section 16(a) of the Exchange Act reporting
a reduction in beneficial ownership of Common Stock during the Lock-Up Period, the undersigned shall include a statement in such
schedule or report describing the purpose of the transaction; (g) the establishment of a trading plan pursuant to Rule 10b5-1 under
the Exchange Act for the transfer of Lock-Up Securities, provided that (i) such plan does not provide for the transfer of
Lock-Up Securities during the Lock-Up Period and (ii) to the extent a public announcement or filing under the Exchange Act, if
any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan,
such public announcement or filing shall include a statement to the effect that no transfer of Lock-Up Securities may be made under
such plan during the Lock-Up Period; (h) the conversion of the outstanding preferred stock of the Company into Common Stock, provided
that such Common Stock remain subject to the terms of this lock-up agreement; (i) the transfer of Lock-Up Securities that occurs
by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, provided
that the transferee agrees to sign and deliver a lock-up agreement substantially in the form of this lock-up agreement for the
balance of the Lock-Up Period, and provided further, that any filing under Section 13 or Section 16(a) of the Exchange Act
that is required to be made during the Lock-Up Period as a result of such transfer shall include a statement that such transfer
has occurred by operation of law; and (j) the transfer of Lock-Up Securities pursuant to a bona fide third party tender offer,
merger, consolidation or other similar transaction made to all holders of the Common Stock involving a change of control (as defined
below) of the Company after the closing of the Public Offering and approved by the Company’s board of directors; provided
that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Lock-Up Securities
owned by the undersigned shall remain subject to the restrictions contained in this lock-up agreement. For purposes of clause (j)
above, “change of control” shall mean the consummation of any bona fide third party tender offer, merger, amalgamation,
consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3)
of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act)
of a majority of total voting power of the voting stock of the Company. The undersigned also agrees and consents to the entry of
stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s
Lock-Up Securities except in compliance with this lock-up agreement.
The undersigned agrees
that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up agreement during
the period from the date hereof to and including the 34th day following the expiration of the Lock-Up Period, the undersigned
will give notice thereof to the Company and will not consummate any such transaction or take any such action unless it has received
written confirmation from the Company that the Lock-Up Period has expired.
If the undersigned
is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally applicable
to any issuer-directed or “friends and family” securities that the undersigned may purchase in the Public Offering;
(ii) the Underwriter agrees that, at least three (3) business days before the effective date of any release or waiver of the foregoing
restrictions in connection with a transfer of Lock-Up Securities, the Underwriter will notify the Company of the impending release
or waiver; and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press
release through a major news service at least two (2) business days before the effective date of the release or waiver. Any release
or waiver granted by the Underwriter hereunder to any such officer or director shall only be effective two (2) business days after
the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected
solely to permit a transfer of Lock-Up Securities not for consideration and (b) the transferee has agreed in writing to be bound
by the same terms described in this lock-up agreement to the extent and for the duration that such terms remain in effect at the
time of such transfer.
The undersigned hereby
represents and warrants that the undersigned has full power, capacity and authority to enter into this lock-up agreement. The undersigned
understands that the Company and the Underwriter are relying upon this lock-up agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors and assigns.
Whether or not the
Public Offering occurs as currently contemplated or at all depends on market conditions and other factors. The Public Offering
will only be made pursuant to the Underwriting Agreement, the terms of which are subject to negotiation between the Company and
the Underwriter.
This lock-up agreement
shall automatically terminate upon the earlier of (i) September 30, 2020, if the Underwriting Agreement is not executed by such
date, (ii) the termination of the Underwriting Agreement, if the Underwriting Agreement is terminated prior to payment for and
delivery of the securities to be sold thereunder, and (iii) either the Underwriter, on the one hand, or the Company, on the other
hand, advising the other in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed
with the Public Offering.
[Signature Page Follows]
This lock-up agreement
has been executed as of the date first written above.
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Exhibit B
Directors, Officers
and Stockholders
Signing
Lock-up Agreement
Directors:
J. Kelly Ganjei
Scott Juda
Marcia Allen
Edgardo Baracchini
Timothy Schroeder
David Szymkowski
Officers:
David J. Moss
Raymond J. Tesi
Mark Lowdell
Stockholders:
John J. Kuch
B-1
