Exhibit 1.1
Augmedix, Inc.
(a Delaware corporation)
6,250,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: November 15, 2023
Augmedix, Inc.
(a Delaware corporation)
6,250,000 Shares of Common Stock
UNDERWRITING AGREEMENT
November 15, 2023
Evercore Group L.L.C.
William Blair & Company, L.L.C.
as Representatives of the several Underwriters
Evercore Group L.L.C.
55 East 52nd Street
New York, NY 10055
William Blair & Company, L.L.C.
150 North Riverside Plaza
Chicago, Illinois 60606
Ladies and Gentlemen:
Augmedix, Inc., a Delaware
corporation (the “Company”), confirms its agreement with Evercore Group L.L.C. (“Evercore”) and each of the other
Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted
as hereinafter provided in Section 10 hereof), for whom Evercore and William Blair & Company, L.L.C. (“William Blair”)
are acting as Representatives (in such capacity, the “Representatives”), with respect to (i) the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Common Stock, par value $0.0001
per share, of the Company (“Common Stock”) set forth in Schedules A and B hereto and (ii) the grant by the Company to
the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of
937,500 additional shares of Common Stock. The aforesaid 6,250,000 shares of Common Stock (the “Initial Securities”) to be
purchased by the Underwriters and all or any part of the 937,500 shares of Common Stock subject to the option described in Section 2(b)
hereof (the “Option Securities”) are herein called, collectively, the “Securities.”
The Company understands that
the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement
has been executed and delivered.
The Company has filed with
the Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3 (No. 333-264337),
including the related preliminary prospectus or prospectuses, covering the public offering and the sale of certain securities, including
the Securities, under the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder
(the “1933 Act Regulations”), which shelf registration statement has been declared effective by the Commission. Such registration
statement, as of any time, means such registration statement as amended by any post-effective amendments thereto to such time, including
the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such
time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant
to Rule 430B under the 1933 Act Regulations (“Rule 430B”), is referred to herein as the “Registration Statement;”
provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended
by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time shall be considered
the “new effective date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2)
of Rule 430B, including the exhibits and schedules thereto as of such time, the documents incorporated or deemed incorporated by reference
therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of
such time pursuant to Rule 430B. Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called
the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include
the Rule 462(b) Registration Statement. Each preliminary prospectus used in connection with the offering of the Securities, including
the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively
referred to herein as a “preliminary prospectus.”. Promptly after the execution and delivery of this Agreement, the Company
will prepare and file a prospectus in accordance with the provisions of Rule 424(b) under the 1933 Act Regulations (“Rule 424(b)”).
The final prospectus, in the form first furnished or made available to the Underwriters for use in connection with the offering of the
Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933 Act, are collectively referred to herein as the “Prospectus.” For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (or any successor
system) (“EDGAR”).
As used in this Agreement:
“Applicable
Time” means 7:10 P.M, New York City time, on November 15, 2023 or such other time as agreed by the Company and the Representatives.
“General Disclosure
Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most recent preliminary
prospectus (including any documents incorporated therein by reference) that is distributed to investors prior to the Applicable Time and
the information included on Schedule C-1 hereto, all considered together.
“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule
433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations
(“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road
show for an offering that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed
with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of
the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors
(other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)),
as evidenced by its being specified in Schedule C-2 hereto.
“Issuer Limited
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) or Rule 163B
of the 1933 Act.
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included” or “stated”
in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall include all such
financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by 1933 Act Regulations
to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to
the execution and delivery of this Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement,
any preliminary prospectus or the Prospectus shall include the filing of any document under the Securities Exchange Act of 1934, as amended
(the “1934 Act”), which is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included
in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be, at or after the execution and delivery
of this Agreement.
SECTION 1.
Representations and Warranties.
(a)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof,
the Applicable Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter,
as follows:
(i) Registration Statement
and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the Registration Statement and
any post-effective amendment thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any
preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending
or, to the Company’s knowledge, contemplated. The Company has complied with each request (if any) from the Commission for additional
information.
Each of the Registration
Statement and any post-effective amendment thereto, at the time of its effectiveness, each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, the Applicable Time, the Closing Time and any Date of Delivery complied and
will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus,
the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, and, in each case, at the Applicable
Time, the Closing Time and any Date of Delivery complied and will comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations. Each preliminary prospectus delivered to the Underwriters for use in connection with this offering and the
Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
The documents incorporated
or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”).
(ii) Accurate Disclosure.
Neither the Registration Statement nor any amendment thereto, at its effective time, on the date hereof, at the Closing Time or at any
Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading. At the Applicable Time and
any Date of Delivery, neither (A) the General Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, when considered together with the General Disclosure Package, included, includes
or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor
any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at
the Closing Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits
or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated
by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement,
the General Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto),
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives expressly for use therein. For purposes of
this Agreement, the only information so furnished shall be the statements with respect to the public offering of the Securities by the
Underwriters set forth under the sub-caption “Price Stabilization, Short Positions and Penalty Bids” under the caption “Underwriting”
in the Disclosure Package and in the Prospectus (collectively, the “Underwriter Information”).
(iii) Issuer Free Writing
Prospectuses. No Issuer Free Writing Prospectus conflicts with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has
not been superseded or modified.
(iv) Testing-the-Waters Materials.
The Company has not engaged in, or authorized any other person to engage in, any Testing-the-Waters Communication.
(v) Company Not Ineligible
Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter
that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act
Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined
in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company
be considered an ineligible issuer.
(vi) Emerging Growth Company
Status. From the time of the initial filing of the Registration Statement with the Commission through the date hereof, the Company
has been and is an “emerging growth company,” as defined in Section 2(a) of the 1933 Act (an “Emerging Growth Company”).
(vii) Independent Accountants.
The accountants who certified the financial statements and supporting schedules included in the Registration Statement, the General Disclosure
Package and the Prospectus are independent public accountants as required by the 1933 Act, the 1933 Act Regulations and the Public Company
Accounting Oversight Board.
(viii)
Financial Statements; Non-GAAP Financial Measures. The financial statements included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly
the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’
equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been
prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout
the periods involved except, in the case of unaudited interim financial statements, subject to normal year-end audit adjustments and the
exclusion of certain footnotes as permitted by the applicable rules of the Commission. The supporting schedules, if any, present fairly
in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information
included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited financial statements included therein. Except as included therein,
no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the
Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations, the 1934 Act
or the 1934 Act Regulations. All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus,
or incorporated by reference therein, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations
of the Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable. The
interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with
the Commission’s rules and guidelines applicable thereto.
(ix) No Material Adverse
Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital stock.
(x) Good Standing of the
Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in
the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other 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 so to qualify or to be in good standing would not result in a Material Adverse Effect.
(xi) Good Standing of the
Company’s Subsidiaries. Each subsidiary of the Company (as such term is defined in Rule 405 of the 1933 Act Regulations (each,
a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its incorporation or organization, has corporate or similar power and authority to own,
lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package
and the Prospectus and is duly qualified 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
or to be in good standing would not result in a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of each Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of any Subsidiary
were issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only subsidiaries of the Company
are (A) the subsidiaries listed on Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the most recently ended fiscal
year and (B) certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant
subsidiary” as defined in Rule 1-02 of Regulation S-X.
(xii) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to this Agreement, pursuant
to reservations, agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the
Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the General Disclosure
Package and the Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable. None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(xiii) Authorization of Agreement.
This Agreement has been duly authorized, executed and delivered by the Company.
(xiv) Authorization and Description
of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued and fully paid and non-assessable; and the issuance of the Securities is
not subject to the preemptive or other similar rights of any securityholder of the Company. The Common Stock conforms to all statements
relating thereto contained in or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus
and such description conforms to the rights set forth in the instruments defining the same. No holder of Securities will be subject to
personal liability by reason of being such a holder.
(xv) Registration Rights.
There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration
Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement, other than those rights
that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and have been waived.
(xvi)
Absence of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its
charter, by-laws or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or
instrument 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 the
properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”), except for
such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute,
rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency
or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties,
assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate,
result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”)
and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties
or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults
or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational document of the Company
or any of its subsidiaries or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity (except for
such violations that would not, singly or in the aggregate, result in a Material Adverse Effect). As used herein, a “Repayment Event”
means any event or condition which gives 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.
(xvii) Absence of Labor Dispute.
No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent,
and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any subsidiary’s principal
suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.
(xviii) Absence
of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no
action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the
Company, threatened, against or involving the Company or any of its subsidiaries, which would result in a Material Adverse Effect, or
which would materially and adversely affect their respective properties or assets or the consummation of the transactions contemplated
in this Agreement or the performance by the Company of its obligations hereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any such subsidiary is a party or of which any of their respective properties or assets is the subject
which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine
litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.
(xix) Compliance with ERISA.
(i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any entity, whether or not
incorporated, that is under common control with the Company within the meaning of Section 4001(a)(14) of ERISA or any entity that would
be regarded as a single employer with the Company under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended
(the “Code”)) would have any liability (each, a “Plan”) has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (iii) no
Plan is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA; (v) no Plan is a “multiemployer plan”
within the meaning of Section 4001(a)(3) of ERISA or a “multiple employer welfare arrangement” within the meaning of Section
3(40) of ERISA; and (ix) none of the following events has occurred or is reasonably likely to occur: (A) a material increase in the aggregate
amount of contributions required to be made to all Plans by the Company or its Controlled Group affiliates in the current fiscal year
of the Company and its Controlled Group affiliates compared to the amount of such contributions made in the Company’s and its Controlled
Group affiliates’ most recently completed fiscal year; or (B) a material increase in the Company and its subsidiaries’ “accumulated
post-retirement benefit obligations” (within the meaning of Accounting Standards Codification Topic 715-60) compared to the amount
of such obligations in the Company and its subsidiaries’ most recently completed fiscal year, except in each case with respect
to the events or conditions set forth in clauses (i) through (ix) hereof, as would not, individually or in the aggregate, have a Material
Adverse Effect.
(xx) Accuracy of Exhibits.
There are no contracts or documents which are required under the 1933 Act or the 1933 Act Regulations to be described in the Registration
Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been
so described and filed as required.
(xxi) Absence of Further
Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any
Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except
(A) such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the Nasdaq Capital
Market (“Nasdaq”), state securities laws or the rules of FINRA and (B) such as which the failure to obtain would not,
singly or in the aggregate, materially impair the power of the Company to perform its obligations under this Agreement.
(xxii) Possession of Licenses
and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business now operated by
them, except where the failure so to possess would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of
any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(xxiii) Title to Property. The Company and its subsidiaries have good and marketable title to all real property owned by them and
good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package
and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and subleases material
to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect,
and neither the Company nor any such subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights
of the Company or such subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.
(xxiv) Possession
of Intellectual Property. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or
would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) the Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively, “Intellectual Property”) used in or necessary to carry on
the business now operated by them, (B) the Intellectual Property owned by the Company and its subsidiaries and, to the Company’s
knowledge, the Intellectual Property licensed to the Company and its subsidiaries are valid, subsisting and enforceable, and there is
no pending, or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, scope
or enforceability of any such Intellectual Property and (C) neither the Company nor any of its subsidiaries has received any notice or
is otherwise aware of any infringement, misappropriation or violation of, or conflict with, asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein.
(xxv) Environmental Laws.
Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health,
the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively,
“Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending
or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigations or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xxvi) Accounting
Controls and Disclosure Controls. The Company and its subsidiaries, taken as a whole, maintain effective internal control over financial
reporting (as defined under Rule 13-a15 and 15d-15 under the 1934 Act Regulations) and a system of internal accounting controls designed
to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization;
(B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) 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 (E) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and
is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there
has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2)
no change in the Company’s internal control over financial reporting that has materially adversely affected, or is reasonably likely
to materially adversely affect, the Company’s internal control over financial reporting. The Company and its subsidiaries, on a
consolidated basis, maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under
the 1934 Act Regulations) that are designed to ensure that information required to be disclosed by the Company in the reports that it
files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or
officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxvii) Compliance with the Sarbanes-Oxley Act. Except as described in the Registration Statement, the General Disclosure Package
and the Prospectus, there is and has been no failure on the part of the Company or any of the Company’s directors and 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.
(xxviii)
Payment of Taxes. All United States federal income 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, and except where the
failure to file such returns or pay such taxes would not reasonably be expected to have a Material Adverse Effect. The United States
federal income tax returns of the Company through the fiscal year ended December 31, 2022 have been settled and no assessment in connection
therewith has been made against the Company. The Company and its subsidiaries have filed all other tax returns that are required to have
been filed by them pursuant to applicable foreign, state, local or other law except insofar as the failure to file such returns would
not result in a Material Adverse Effect, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by
the Company and its subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves
have been established by the Company. 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.
(xxix) Insurance. The Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks that the Company believes are generally maintained by companies of established
repute engaged in the same or similar business, and all such insurance is, to the Company’s knowledge, in full force and effect.
The Company has no reason to believe that it or any of its subsidiaries will not be able (A) to renew its existing insurance coverage
as and when such policies expire or (B) 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 of the Company nor
any of its subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
(xxx) Investment Company
Act. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not be
required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxxi) Absence of Manipulation. Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without
the consent of the Representative) has taken or will take, directly or indirectly, any action which is designed, or would be expected,
to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act (“Regulation M”).
(xxxii) Anti-Corruption
and Anti-Bribery Laws. None of the Company, any of its subsidiaries or any of their respective directors, officers or employees or,
to the knowledge of the Company, any agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware
of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) or any other applicable anti-bribery or anti-corruption
law, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization
of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention of the FCPA. 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 or any other applicable anti-bribery or anti-corruption law and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. Neither the Company nor any of its subsidiaries
will use, directly, or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization
of the payment or giving of money, or anything else of value, to any person in violation of the FCPA or any other applicable anti-bribery
or anti-corruption laws.
(xxxiii) Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title
III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(“USA PATRIOT Act”) and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable anti-money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit
or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company, threatened.
(xxxiv) OFAC. None of the Company, any of its subsidiaries directors, officers or employees, or, to the knowledge of the Company,
any agent, affiliate or representative of the Company or any of its subsidiaries is an individual or entity (“Person”) (i)
currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation,
the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council
(“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), (ii) located, organized or resident in a country or territory that is the subject of Sanctions, including, without
limitation, Crimea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea,
Russia and Syria or (iii) owned or controlled by any person described in (i) or (ii); and the Company will not directly or indirectly
use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint
venture partners or other Person, to fund or facilitate any activities of or business with any Person, or in any country or territory,
that, at the time of such funding, is the subject or the target of Sanctions or in any other manner that will result in a violation by
any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
For the past five years, the Company and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings
or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with
any country or territory that is the subject of Sanctions; the Company and its subsidiaries have instituted, and maintain, policies and
procedures designed to promote and achieve continued compliance with Sanctions.
(xxxv) Lending Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus,
the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any Underwriter
and (ii) does not intend to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate
of any Underwriter.
(xxxvi) Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the
General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate
and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(xxxvii) Cybersecurity.
(A) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no security
breach or incident, unauthorized access or disclosure, or other compromise of the Company’s or its subsidiaries’ information
technology and computer systems, networks, hardware, software, data and databases (including such data and information of their respective
customers, employees, suppliers, vendors and any third-party data maintained, processed or stored by the Company and its subsidiaries,
and any such data processed or stored by third parties on behalf of the Company and its subsidiaries), equipment or technology (collectively,
“IT Systems and Data”), except for those that have been remedied without material cost or liability; (B) except as has not
been, or would not reasonably be expected to be, material to the Company and its subsidiaries, taken as a whole, neither the Company
nor its subsidiaries have been notified of, and have no knowledge of any event or condition that would reasonably be expected to result
in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data; and (C) the
Company and its subsidiaries, taken as a whole, have implemented commercially reasonably controls, policies, procedures and technological
safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably
consistent with industry standards and practices, or as required by applicable regulatory standards. The Company and its subsidiaries
are, and for the past three (3) years have been, in material compliance with all applicable laws or statutes and all applicable judgments,
orders, rules and regulations of any Governmental Authority, and the Company’s and its subsidiaries’ public-facing policies
and contractual obligations, in each case, relating to the privacy and security of IT Systems and Data and to the protection of such
IT Systems and Data from unauthorized use, access, misappropriation or modification, except in each case as would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(xxxviii) Privacy. The
Company and each of its subsidiaries have for the past three years complied, and are presently in compliance, in all material respects,
with its privacy and security policies, and with all applicable laws and regulations regarding the collection, use, transfer, storage,
protection, disposal and/or disclosure of personally identifiable information (collectively, the “Data Protection Requirements”).
To ensure compliance with the Data Protection Requirements, the Company and its subsidiaries have in place, comply with, and take appropriate
steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and
security and the collection, storage, use, disclosure, handling, and analysis of personally identifiable information (the “Policies”).
The Company and its subsidiaries have at all times made all disclosures to users or customers required by applicable Data Protection
Requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or
in violation of any applicable Data Protection Requirements in any material respect. Neither the Company nor any subsidiary: (i) has
received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Data Protection
Requirements, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is
currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Data
Protection Requirement; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability by any governmental
or regulatory authority under any Data Protection Requirement. The execution, delivery and performance of this Agreement or any other
agreement referred to in this Agreement will not result in a breach of any Privacy Laws or Policies. The Company and its subsidiaries
have taken commercially reasonable steps to protect the IT Systems and Data used in connection with the operation of the Company and/or
its subsidiaries. The Company and its subsidiaries have used reasonable efforts to establish, and have established, commercially reasonable
disaster recovery and security plans, procedures and facilities for the business, including, without limitation, for the IT Systems and
Data held or used by or for the Company and/or any of its subsidiaries. Neither the Company nor any of its subsidiaries has experienced
a security breach or attack or other compromise of or relating to any such IT Systems and Data requiring notice to any third party under
applicable state or federal law.
(b)
Officer’s Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered
to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing.
(a) Initial Securities.
On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from
the Company, at the price per share set forth in Schedule A, that proportion of the number of Initial Securities set forth in Schedule
B opposite the name of the Company, which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter,
plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in each case, to such adjustments among the Underwriters
as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.
(b) Option Securities.
In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth,
the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional 937,500 shares of
Common Stock, as set forth in Schedule B, at the price per share set forth in Schedule A, less an amount per share equal to any dividends
or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby
granted may be exercised for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time
upon notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters
are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery
(a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the
total number of Initial Securities, subject, in each case, to such adjustments as the Representatives in their sole discretion shall
make to eliminate any sales or purchases of fractional shares.
(c)
Payment. Payment of the purchase price for, and delivery of certificates or security entitlements for, the Initial Securities
shall be made at the offices of Latham & Watkins LLP at 330 North Wabash Avenue, Suite 2800, Chicago, Illinois 60611, or at such other
place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New York City time) on the second (third, if
the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by
the Representatives and the Company (such time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event
that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates
or security entitlements for, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Representatives and the Company, on each Date of Delivery as specified in the notice from the Representatives to the
Company.
Payment shall be made to the
Company by wire transfer of immediately available funds to a bank account(s) designated by the Company against delivery to the Representatives
for the respective accounts of the Underwriters of certificates or security entitlements for the Securities to be purchased by them. It
is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives,
individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for
the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
SECTION 3.
Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance with Securities
Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements of 430B, and will notify
the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement
shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, including any document incorporated by reference therein or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes
or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes
the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect
all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)),
and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company
will make every reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment.
(b) Continued Compliance
with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations
so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement,
the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception
afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will
not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General
Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the
Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly (A) give the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements
and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or
supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such
amendment or supplement to which the Representatives or counsel for the Underwriters shall object. The Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representatives
notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company
will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish
the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be,
and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration
Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed
copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents
and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses.
The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish
to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded
by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(e) Blue Sky Qualifications.
The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain
such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject.
(f) Rule 158. The Company
will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as
soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(g) Use of Proceeds.
The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Registration Statement,
the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h) Listing. The Company
will use its best efforts to effect and maintain the listing of the Common Stock (including the Securities) on Nasdaq.
(i) Restriction on Sale of
Securities. During a period of 90 days from the date of the Prospectus, the Company will not, without the prior written consent of
the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file or confidentially submit any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such
swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to
in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement, the
General Disclosure Package and the Prospectus, (D) any shares of Common Stock issued pursuant to any non-employee director stock plan
or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus or (E) the
filing of one or more Registration Statements on Form S-8 registering securities pursuant to the Company stock plans.
(j) Reporting Requirements.
The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would
be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report the use of proceeds
from the issuance of the Shares as may be required under Rule 463 under the 1933 Act.
(k) Issuer Free Writing Prospectuses.
The Company agrees that, unless it obtains the prior written consent of the Representatives, it will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,”
or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that
the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule C-2 hereto and any “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives. The
Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented
to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will
comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required,
legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event
or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in
the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(l) Certification Regarding
Beneficial Owners. The Company will deliver to the Representatives, on the date of execution of this Agreement, a properly completed
and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation,
and the Company undertakes to provide such additional supporting documentation as the Representatives may reasonably request in connection
with the verification of the foregoing certification.
(m) Emerging Growth Company
Status. The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior
to the later of (i) completion of the distribution of the Securities within the meaning of the 1933 Act and (ii) completion of the 90-day
restricted period referred to in Section 3(i).
SECTION 4.
Payment of Expenses.
(a) Expenses. The Company
will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free
Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of
any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the certificates or security entitlements
for the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants
and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(e)
hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement thereto (such fees and disbursements of counsel not to exceed
$5,000), (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including
without limitation, expenses associated with the production of road show slides and graphics, (viii) the filing fees incident to, and
the reasonable and documented fees and disbursements of counsel to the Underwriters in an amount not to exceed $10,000 in connection
with, the review by FINRA of the terms of the sale of the Securities and (ix) the fees and expenses incurred in connection with the listing
of the Securities on Nasdaq. It is understood, however, that, except as provided in this Section 4 and Section 6 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities
by them, and any advertising expenses connected with any offers they may make.
(b)
Termination of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5
(other than by reason of the failure to satisfy the conditions set forth in Sections 5(c) and (l)(iii)) or Section 9(a)(i) or (iii)hereof,
the Company shall reimburse the Underwriters for all of their accountable out-of-pocket expenses actually incurred, including the reasonable
fees and disbursements of counsel for the Underwriters; provided, however, that in the event any such termination is effected after the
Closing Date but prior to any Date of Delivery with respect to the purchase of any Option Securities, the Company shall only reimburse
the Underwriters for their reasonable and documented out-of-pocket expenses, including the reasonable fees and disbursements of counsel
for the Underwriters, incurred after the Closing Date in connection with the proposed purchase of any such Option Securities; provided
further, that if this Agreement is terminated pursuant to Section 10, the Company shall only be required to reimburse the reasonable and
documented out-of-pocket expenses (including the reasonable and documented fees and disbursements of counsel for the Underwriters) of
the Underwriters that have not failed to purchase the Securities that they have agreed to purchase hereunder.
SECTION 5.
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained herein or in certificates of any officer of the Company or any
of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration
Statement. The Registration Statement has become effective and, at the Closing Time, no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending
the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted
or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission
for additional information.
(b) Opinion of Counsel for
Company. At the Closing Time, the Representatives shall have received the written opinion and negative assurance letter, dated the
Closing Time, of Morrison & Foerster LLP, counsel for the Company, in form and substance satisfactory to the Representatives.
(c) Opinion of Counsel for
Underwriters. At the Closing Time, the Representatives shall have received the written opinion, dated the Closing Time, of Latham
& Watkins LLP, counsel for the Underwriters, in form and substance satisfactory to the Representatives.
(d) Officers’ Certificate.
At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the Chief Executive
Officer or the President of the Company and of the principal financial or principal accounting officer of the Company, dated the Closing
Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company
in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the
Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933
Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no
proceedings for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.
(e) Accountant’s Comfort
Letter. At the time of the execution of this Agreement, the Representatives shall have received from each of Grant Thornton LLP and
Frank, Rimerman + Co. LLP a comfort letter, dated such date, in form and substance satisfactory to the Representatives.
(f) Bring-down Comfort Letter.
At the Closing Time, the Representatives shall have received from each of Grant Thornton LLP and Frank, Rimerman + Co. LLP a letter,
dated as of the Closing Time, to the effect that they reaffirm the statements made in the comfort letter furnished pursuant to subsection
(e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing
Time.
(g) Chief
Financial Officer’s Certificate. At the time of the execution of this Agreement, the Representatives shall have received from
the Chief Financial Officer of the Company, dated such date, in form and substance reasonably satisfactory to the Representatives, giving
“management comfort” with respect to certain financial data contained in the Registration Statement, the General Disclosure
Package and the Prospectus.
(h) Bring-down
Chief Financial Officer’s Certificate. At the Closing Time, the Representatives shall have received from the Chief Financial
Officer of the Company, dated the Closing Time, reaffirming the statements made in the certificate furnished pursuant to Section 5(g)
hereof.
(i) Approval of Listing. At the Closing Time, the Securities shall have been approved for listing on Nasdaq.
(j) No Objection. FINRA
has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements
relating to the offering of the Securities.
(k)
Lock-up Agreements. At the date of this Agreement, the Representatives shall have received an agreement substantially in
the form of Exhibit A hereto signed by the persons listed on Schedule D hereto.
(l) Conditions to Purchase
of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all
or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery and,
at the relevant Date of Delivery, the Representatives shall have received:
(i) Officers’
Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the principal
financial or principal accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(ii) Opinion
of Counsel for Company. If requested by the Representatives, the written opinion of Morrison & Foerster LLP, counsel for the Company,
in form and substance reasonably satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion
of Counsel for Underwriters. If requested by the Representatives, the written opinion of Latham & Watkins LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(iv) Bring-down
Comfort Letter. If requested by the Representatives, a letter from each of Grant Thornton LLP and Frank, Rimerman + Co. LLP, in form
and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 5(f) hereof, except that the “specified date” in the letter furnished
pursuant to this paragraph shall be a date not more than three business days prior to such Date of Delivery.
(v) Chief
Financial Officer’s Certificate. A certificate, dated such Date of Delivery, of the chief financial or chief accounting officer
of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(g) hereof remains true and correct
as of such Date of Delivery.
(m) Additional Documents.
At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished with such customary
documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities
as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(n) Termination of Agreement.
If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in
the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the obligations
of the several Underwriters to purchase the relevant Option Securities, may be terminated by the Representatives by notice to the Company
at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 14, 15, 16 and 17 shall survive
any such termination and remain in full force and effect.
SECTION 6.
Indemnification.
(a) Indemnification of Underwriters.
The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the
1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be
a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material
fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus
(or any amendment or supplement thereto), or (B) in any materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow
or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission
in any preliminary prospectus, Issuer Free Writing Prospectus, Prospectus or in any Marketing Materials of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information
deemed to be a part thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with the Underwriter Information.
(b) Indemnification of
Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed
to be a part thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with the Underwriter Information.
(c) Actions against Parties;
Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified party.
(e) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters,
on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, in connection with
the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received
by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate public offering
price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any documented legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such
Underwriter in connection with the Shares underwritten by it and distributed to the public.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section
7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and
each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director
of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Initial
Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter,
its officers or directors, or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination
of Agreement.
(a) Termination.
The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has
been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable
or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially limited by the Commission or Nasdaq, or (iv) if trading generally
on the NYSE MKT or the New York Stock Exchange or Nasdaq has been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any
other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement or clearance
services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14, 15, 16 and 17 shall survive such termination
and remain in full force and effect.
SECTION 10. Default by
One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:
(i) if
the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell,
the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to
this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default
which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which
does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the (i) Representatives or (ii) the Company shall have the right to postpone Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement,
the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter”
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be directed to Evercore at 55 East 52nd Street,
New York, New York 10055, attention of ECM General Counsel, and William Blair & Company, L.L.C., 150 North Riverside Plaza, Chicago,
IL 60606, Attention: General Counsel, facsimile: (312) 551-4646, email:; and notices to the Company shall be directed to it at 111 Sutter
Street, Suite 1300, San Francisco, CA 94104, attention of Chief Financial Officer, email: .
SECTION 12. No Advisory
or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement,
including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the
offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the
agent or fiduciary of the Company, any of its subsidiaries, or its respective stockholders, creditors, employees or any other party, (c)
no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering
of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
or any of its subsidiaries on other matters) and no Underwriter has any obligation to the Company with respect to the offering of the
Securities 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, (e) the Underwriters have not provided
any legal, accounting, investment, regulatory or tax advice with respect to the offering of the Securities and the Company has consulted
its own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate and (f) none of the activities of
the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice or solicitation
of any action by the Underwriters with respect to any entity or natural person.
SECTION 13. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For purposes of this Section
13, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in,
and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the
Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 14. Parties.
This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters,
the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and
7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit
of the Underwriters, the Company and their respective successors, and said controlling persons and officers and directors and their heirs
and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Trial by Jury.
The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the
Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 16. GOVERNING
LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. Consent to
Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby shall be instituted in (i) the federal courts of the United States of America located in the City and County
of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough
of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except
for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 18. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Counterparts
and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same Agreement. Electronic signatures complying with the New York Electronic
Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed
original signatures for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed
counterpart of this Agreement will constitute due and sufficient delivery of such counterpart.
SECTION 20. Effect of
Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.
| | Very truly yours, |
| | |
| | AUGMEDIX, INC. |
| | |
| By: | /s/ Emmanuel Krakaris |
| Name: | Emmanuel Krakaris |
| | Title: | President, Chief Executive Officer and Secretary |
CONFIRMED AND ACCEPTED,
as of the date first above written:
EVERCORE GROUP L.L.C.
| By |
/s/ Mark Hanson |
|
|
Authorized Signatory |
|
| WILLIAM BLAIR & COMPANY, L.L.C. |
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| |
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| By |
/s/ Steve Maletzky |
|
|
Authorized Signatory |
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For themselves and as Representatives of the other Underwriters named
in Schedule A hereto.
SCHEDULE A
The public offering price per share for the Securities shall be $4.00.
The purchase price per share for the Securities to be paid by the several
Underwriters shall be $3.72, being an amount equal to the public offering price set forth above less $0.28 per share, subject to adjustment
in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable
on the Option Securities.
| Name of Underwriter | |
Number of
Initial Securities | |
| Evercore Group L.L.C. | |
| 2,812,500 | |
| William Blair & Company, L.L.C. | |
| 2,812,500 | |
| B. Riley Securities, Inc. | |
| 625,000 | |
| Total | |
| 6,250,000 | |
SCHEDULE B
| | |
Number of
Initial Securities
to be Sold | | |
Maximum Number of Option Securities
to Be Sold | |
| Evercore Group L.L.C. | |
| 2,812,500 | | |
| 421,875 | |
| William Blair & Company, L.L.C. | |
| 2,812,500 | | |
| 421,875 | |
| B. Riley Securities, Inc. | |
| 625,000 | | |
| 93,750 | |
| Total | |
| 6,250,000 | | |
| 937,500 | |
SCHEDULE C-1
Pricing Terms
| 1. | The Company is selling 6,250,000 shares of Common Stock. |
| 2. | The Company has granted an option to the Underwriters, severally
and not jointly, to purchase up to an additional 937,500 shares of Common Stock. |
| 3. | The public offering price per share for the Securities shall
be $4.00. |
SCHEDULE C-2
Free Writing Prospectuses
None.
SCHEDULE D
List of Persons and Entities Subject to Lock-up
Entities affiliated with Redmile Group, LLC
hInsight-AUGX Holdings, LLC
Emmanuel Krakaris
Jason Krikorian
Ian Shakil
William J. Febbo
Sandra Breber
Robert Faulkner
Jonathan Hawkins
Laurie A. S. McGraw
Margie L. Traylor
Paul Ginocchio
Saurav Chatterjee
Roderick H. O’Reilly
Exhibit A
[Form of Lock-up Letter]
November , 2023
Evercore Group L.L.C.
William Blair & Company, L.L.C.
as Representatives of the several
Underwriters to be named in
the
within-mentioned Underwriting Agreement
c/o Evercore Group L.L.C.
55 East 52nd Street
New York, NY 10055
c/o William Blair & Company, L.L.C.
150 North Riverside Plaza
Chicago, Illinois 60606
Re: Proposed Public Offering
of Augmedix, Inc. Common Stock
Ladies and Gentlemen:
The undersigned, a stockholder,
officer and/or director of Augmedix, Inc., a Delaware corporation (the “Company”), understands that Evercore Group L.L.C.
and William Blair & Company, L.L.C., as representatives (the “Representatives”) of the several underwriters (the “Underwriters”),
propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the public
offering (the “Offering”) of shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”).
In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder, officer and/or director of the
Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with each Underwriter to be named in the Underwriting Agreement that, during the period beginning on the date of this lock-up
agreement (this “Lock-Up Agreement”) and ending on the date that is [90 days]1[nine
months]2 from the date of the Underwriting
Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives, (i)
directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Company’s 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”), or make any demand for or exercise any right with respect to the registration of any of the Lock-up Securities, or
file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities
Act of 1933, as amended (the “Securities Act”), (ii) enter into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise or (iii) publicly announce the intention
to do any of the foregoing.
| 1 | To be excluded from lockup agreement for each of hInsight-AUGX
Holdings, LLC and the entities affiliated with Redmile Group, LLC. |
| 2 | To be included in lockup agreement for each of hInsight-AUGX
Holdings, LLC and the entities affiliated with Redmile Group, LLC. |
The undersigned agrees that
the foregoing restrictions preclude the undersigned from engaging, during the Lock-Up Period, in any hedging or other transaction that
is designed to or that reasonably could be expected to lead to or result in a sale or disposition of the Lock-Up Securities, even if such
Lock-Up Securities would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include
without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with
respect to any of the Lock-Up Securities or with respect to any security that includes, relates to, or derives any significant part of
its value from such Lock-Up Securities.
Notwithstanding the foregoing,
and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the Representatives,
provided that (1) the Representatives receive a signed lock-up agreement for the balance of the lockup period from each donee, trustee,
distributee, or transferee, as the case may be, (2) [except for transfers made pursuant to clause (iv) below,]3
any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported with the Securities and
Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers:
| (i) | as a bona fide gift or gifts; or |
| (ii) | to any trust, partnership, limited liability company or other
entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up
agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin);
or |
| (iii) | in distributions of shares of Common Stock or any security
convertible into or exercisable for Common Stock to limited partners, limited liability company members or stockholders of the undersigned;
or |
| (iv) | to the undersigned’s
direct or indirect affiliates (as defined in Rule 405 promulgated under the Securities Act) or to any investment fund or other entity
[controlled or managed by]4 [under common
control or common management with]5 the
undersigned; or |
| (v) | if the undersigned is a trust, to the trustees, beneficiaries
or settlors of such trust; or |
| (vi) | by testate succession or intestate succession. |
| 3 | To be included in lockup agreement for each of hInsight-AUGX
Holdings, LLC and the entities affiliated with Redmile Group, LLC. |
| 4 | To be excluded from lockup agreement for each of hInsight-AUGX
Holdings, LLC and the entities affiliated with Redmile Group, LLC. |
| 5 | To be included in lockup agreement for each of hInsight-AUGX Holdings, LLC and the entities
affiliated with Redmile Group, LLC. |
In addition, the foregoing
restrictions shall not apply to: (i) (a) the undersigned’s exercise or the vesting of equity-based awards granted pursuant to the
Company’s equity incentive plans in place as of the date of this letter; (b) the undersigned’s exercise of warrants to purchase
Common Stock in place as of the date of this letter and issued pursuant to previously disclosed private placements; (c) the transfer,
sale or other disposition of any shares of Common Stock held by the undersigned or issued upon the exercise of any stock options or warrants
or upon the vesting of any other equity-based awards held by the undersigned through the net issuance by the Company of shares of Common
Stock, a broker-assisted cashless exercise or otherwise, in each case in order to satisfy any tax obligations due as a result of such
exercise or vesting; provided, that (y) in the case of clauses (a) and (b), such restrictions shall apply to any of the Lock-Up Securities
issued upon such exercise or vesting and (z) in each case, that if any filing is required under Section 16(a) of the Exchange Act in connection
with such exercise, vesting or disposition, such filing shall include a statement to the effect that such filing is the result of the
exercise or vesting of equity-based securities pursuant to the Company’s equity incentive plans or pursuant to the exercise of warrants
issued pursuant to previously disclosed private placements; (ii) any transaction with respect to shares of Common Stock [or other Securities
of the Company]6 acquired in market transactions
after completion of the Offering; [provided, that no filing by the undersigned reporting a reduction in beneficial ownership under Section
16(a) of the Exchange Act shall be required or shall be made voluntarily in connection with any such transaction or]7
(iii) the establishment of any contract, instruction or plan (a “Plan”) that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B)
under the Exchange Act; provided, that no sales of the Lock-Up Securities shall be made pursuant to such a Plan prior to the expiration
of the Lock-Up Period, and such a Plan may only be established if no public announcement of the establishment or existence thereof and
no filing with the SEC or other regulatory authority in respect thereof or transactions thereunder or contemplated thereby, by the undersigned,
the Company or any other person, shall be made by the undersigned, the Company or any other person, prior to the expiration of the Lock-Up
Period[●]8[; or (iv) the undersigned’s
disposition of any Lock-Up Securities as a result of or following the undersigned’s determination, upon the advice of qualified
healthcare regulatory counsel, that the Ownership Interest (directly or indirectly) of any person in the Company or its direct or indirect
subsidiaries either (a) results in prohibited referrals to the undersigned or any of its respective affiliates under applicable law or
(b) causes the undersigned or any of its respective affiliates to fail to comply in any respect with any requirement for reimbursement
eligibility under any Government Program. For purposes of the preceding clause (iv), “Government Program” shall mean the federal
Medicare (including Medicare Part D and Medicare Advantage), Medicaid, Medicaid-waiver and CHAMPUS/TRICARE programs, any other similar
or successor federal health care program (as defined in 42 U.S.C. §1320a-7b(f)) and any similar state or local programs; and “Ownership
Interest” shall mean any direct or indirect ownership or investment interest whether through equity, debt or other means, including
but not limited to stock, stock options, warrants, partnership shares, limited liability company memberships, as well as loans and bonds.]9
[In the event that a waiver
or release is granted to any stockholder other than the undersigned relating to the lock-up restrictions set forth above for shares of
Common Stock, the same percentage of shares of Common Stock held by the undersigned shall be immediately and fully released (the “Pro-rata
Release”) on the same terms from any remaining lock-up restrictions set forth herein. Notwithstanding the foregoing, no waiver or
termination will constitute a Pro-rata Release: (a) unless and until the Underwriters have first released or waived such lockup restrictions
to any individual party or parties to sell or otherwise transfer or dispose of Common Stock or other securities (whether in one or multiple
releases or waivers) representing, in the aggregate, more than one percent (1%) of the Company’s total outstanding shares of Common
Stock (calculated on an as-converted, fully-diluted basis and as of the close of business on the date set forth on the final prospectus
used to sell Common Stock in the Offering) or (b) if such waiver is effected solely to permit a transfer not involving a disposition for
value and the transferee has agreed in writing to sign and deliver a lock-up agreement substantially in the form of this agreement. In
the event that the undersigned is released from any of its obligations under this lock-up agreement (pursuant to this paragraph), or by
virtue of this agreement (pursuant to this paragraph), becomes entitled to offer, pledge, sell, contract to sell, or otherwise dispose
of any Common Stock during the Lock-Up Period, the Underwriters shall provide notification of such to the undersigned at least two business
days before the effective date of any such release or waiver.]10
| 6 | To be included in lockup agreement for each of hInsight-AUGX
Holdings, LLC and the entities affiliated with Redmile Group, LLC. |
| 7 | To be excluded from lockup agreement for each of hInsight-AUGX
Holdings, LLC and the entities affiliated with Redmile Group, LLC. |
| 8 | To be excluded from lockup agreement for each of hInsight-AUGX
Holdings, LLC and the entities affiliated with Redmile Group, LLC. |
| 9 | To be included in lockup agreement for hInsight-AUGX Holdings,
LLC. |
| 10 | To be included in lockup agreement for each of hInsight-AUGX
Holdings, LLC and the entities affiliated with Redmile Group, LLC. |
[For the avoidance of doubt,
notwithstanding anything to the contrary herein, the restrictions in this Lock-Up Agreement shall not apply to transactions relating to
Common Stock or other securities of the Company by RAF, L.P., Redmile Capital Fund, LP, Redmile Capital Offshore Master Fund, Ltd., Redmile
Private Investments II, L.P., Redmile Strategic Trading Sub, Ltd, RedCo II Master Fund, L.P. or any affiliate thereof or any entity under
common control or common investment management with the foregoing or any other pooled investment vehicle advised by Redmile Group, LLC.]11
The undersigned hereby represents
and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement and that upon request, the undersigned
will execute any additional documents necessary to ensure the validity or enforcement of this Lock-Up Agreement. All authority herein
conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned. This Lock-Up Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic
signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method
and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
The undersigned understands
that the undersigned shall be automatically released from all obligations under this Lock-Up Agreement if (i) the Company notifies the
Underwriters in writing that it does not intend to proceed with the Offering, (ii) the Representatives notify the Company in writing that
they have determined not to proceed with the Offering, (iii) the Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder or (iv) the
Underwriting Agreement does not become effective by December 15, 2023.
The undersigned acknowledges
and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action
from the undersigned with respect to the offering of securities and the undersigned has consulted their own legal, accounting financial,
regulatory, tax and other advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the
Underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to you in connection
with the Offering, the Underwriters are not making a recommendation to you to participate in the Offering, enter into this agreement,
or sell any shares of Common Stock at the price determined in the Offering, and nothing set forth in such disclosures or documentation
is intended to suggest that any Underwriter is making such a recommendation
| 11 | To be included in lockup agreement for R. Faulkner. |
The undersigned also agrees
and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of
the Lock-Up Securities except in compliance with the foregoing restrictions.
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Very truly yours, |
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Signature: |
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Print Name: |
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A-5
