Exhibit 1.1
[●]
Shares
Apogee Therapeutics, Inc.
UNDERWRITING AGREEMENT
[●], 2023
JEFFERIES LLC
COWEN AND COMPANY, LLC
STIFEL, NICOLAUS & COMPANY, INCORPORATED
GUGGENHEIM SECURITIES, LLC
As Representatives of the several Underwriters
c/o JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
c/o Cowen and Company, LLC
599 Lexington Avenue
New York, New York 10022
c/o Stifel, Nicolaus &
Company, Incorporated
787 7th Avenue, 11th Floor
New York, New York 10019
c/o Guggenheim Securities,
LLC
330 Madison Avenue
New York, New York 10017
Ladies and Gentlemen:
Introductory.
Apogee Therapeutics, Inc., a Delaware corporation (together with its predecessor entity, Apogee Therapeutics, LLC (“Apogee
LLC”), the “Company”), proposes to issue and sell to the several underwriters named in Schedule A
(the “Underwriters”) an aggregate of [●] shares of its common stock, par value $[●] per share (the “Shares”).
The [●] Shares to be sold by the Company are called the “Firm Shares.” In addition, the Company has granted to
the Underwriters an option to purchase up to an additional [●] Shares as provided in Section 2. The additional [●] Shares
to be sold by the Company pursuant to such option are collectively called the “Optional Shares.” The Firm Shares and,
if and to the extent such option is exercised, the Optional Shares are collectively called the “Offered Shares.” Jefferies
LLC (“Jefferies”), Cowen and Company, LLC (“Cowen”), Stifel, Nicolaus & Company, Incorporated
(“Stifel”) and Guggenheim Securities, LLC (“Guggenheim”) have agreed to act as representatives of
the several Underwriters (in such capacity, the “Representatives”) in connection with the offering and sale of the
Offered Shares. To the extent there are no additional underwriters listed on Schedule A, the term “Representatives”
as used herein shall mean you, as Underwriters, and the term “Underwriters” shall mean either the singular or the plural,
as the context requires.
The Representatives agree that up to [●]
of the Firm Shares to be purchased by the Underwriters (the “Directed Shares”) shall be reserved for sale to certain
eligible directors, officers and employees of the Company and persons having business relationships with the Company (collectively, the “Participants”),
as part of the distribution of the Offered Shares by the Underwriters (the “Directed Share Program”) subject to the
terms of this Agreement, the applicable rules, regulations and interpretations of the Financial Industry Regulatory Authority, Inc.
(“FINRA”) and all other applicable laws, rule and regulations. The Directed Share Program shall be administered
by Jefferies. To the extent that the Directed Shares are not orally confirmed for purchase by the Participants by the end of the first
business day after the date of this Agreement, such Directed Shares may be offered to the public by the Underwriters as part of the public
offering contemplated hereby.
The
Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-1, File No. 333-272831, which contains a form of prospectus to be used in connection with the public offering
and sale of the Offered Shares. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto,
in the form in which it became effective under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), including any information deemed to be a part thereof at the time
of effectiveness pursuant to Rule 430A under the Securities Act, is called the “Registration Statement.” Any
registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act in connection with the offer and
sale of the Offered Shares is called the “Rule 462(b) Registration Statement,” and from and after the date
and time of filing of any such Rule 462(b) Registration Statement the term “Registration Statement” shall include
the Rule 462(b) Registration Statement. The prospectus, in the form first used by the Underwriters to confirm sales of the
Offered Shares or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act, is called the “Prospectus.” The preliminary prospectus dated [●], 2023 describing
the Offered Shares and the offering thereof is called the “Preliminary Prospectus,” and the Preliminary Prospectus
and any other prospectus in preliminary form that describes the Offered Shares and the offering thereof and is used prior to the filing
of the Prospectus is called a “preliminary prospectus.” As used herein, “Applicable Time” is [●]
[a.m.][p.m.] (New York City time) on [●], 2023. As used herein, “free writing prospectus” has the meaning set
forth in Rule 405 under the Securities Act, and “Time of Sale Prospectus” means the Preliminary Prospectus together
with the free writing prospectuses, if any, identified in Schedule B hereto and the pricing information set forth on Schedule
B hereto. As used herein, “Road Show” means a “road show” (as defined in Rule 433 under the Securities
Act) relating to the offering of the Offered Shares contemplated hereby that is a “written communication” (as defined in
Rule 405 under the Securities Act). As used herein, “Section 5(d) Written Communication” means each
written communication (within the meaning of Rule 405 under the Securities Act) that is made in reliance on Section 5(d) of
the Securities Act by the Company or any person authorized to act on behalf of the Company to one or more potential investors that are
qualified institutional buyers (“QIBs”) and/or institutions that are accredited investors (“IAIs”),
as such terms are respectively defined in Rule 144A and Rule 501(a) under the Securities Act, to determine whether such
investors might have an interest in the offering of the Offered Shares; “Section 5(d) Oral Communication”
means each oral communication, if any, made in reliance on Section 5(d) of the Securities Act by the Company or any person
authorized to act on behalf of the Company made to one or more QIBs and/or one or more IAIs to determine whether such investors might
have an interest in the offering of the Offered Shares; “Marketing Materials” means any materials or information provided
to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Offered Shares, including
any roadshow or investor presentations made to investors by the Company (whether in person or electronically); and “Permitted
Section 5(d) Communication” means the Section 5(d) Written Communication(s) and Marketing Materials
listed on Schedule C attached hereto.
All references in this Agreement to (i) the
Registration Statement, any preliminary prospectus (including the Preliminary Prospectus), or the Prospectus, or any amendments or supplements
to any of the foregoing, or any free writing prospectus, shall include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System (“EDGAR”) and (ii) the Prospectus shall be deemed to include any
“electronic Prospectus” provided for use in connection with the offering of the Offered Shares as contemplated by Section 3(o) of
this Agreement.
In the event that the Company has only one subsidiary,
then all references herein to “subsidiaries” of the Company shall be deemed to refer to such single subsidiary, mutatis
mutandis.
The Company hereby confirms its agreement with
the Underwriters as follows:
Section 1. Representations
and Warranties of the Company. The Company hereby represents, warrants and covenants to each Underwriter, as of the date of this Agreement,
as of the First Closing Date (as hereinafter defined) and as of each Option Closing Date (as hereinafter defined), if any, as follows:
(a) Compliance
with Registration Requirements. The Registration Statement has become effective under the Securities Act. The Company has complied,
to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information, if any. No stop
order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the Company’s knowledge, are contemplated or threatened by the Commission.
(b) Disclosure.
Each preliminary prospectus and the Prospectus when filed complied in all material respects with the Securities Act and, if filed by electronic
transmission pursuant to EDGAR, was identical (except as may be permitted by Regulation S-T under the Securities Act) to the copy
thereof delivered to the Underwriters for use in connection with the offer and sale of the Offered Shares. Each of the Registration Statement
and any post-effective amendment thereto, at the time it became or becomes effective, complied and will comply in all material respects
with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. As of the Applicable Time, the Time of Sale Prospectus
(including any preliminary prospectus wrapper) did not, and at the First Closing Date (as defined in Section 2) and at each applicable
Option Closing Date (as defined in Section 2), will not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Prospectus
(including any Prospectus wrapper), as of its date, did not, and at the First Closing Date and at each applicable Option Closing Date,
as then amended or supplemented by the Company, will not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from
the Registration Statement or any post-effective amendment thereto, or the Prospectus or the Time of Sale Prospectus, or any amendments
or supplements thereto, made in reliance upon and in conformity with written information relating to any Underwriter furnished to the
Company in writing by the Representatives expressly for use therein, it being understood and agreed that the only such information consists
of the information described in Section 9(b) below. There are no contracts or other documents required to be described in the
Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been described or
filed as required.
(c) Free
Writing Prospectuses; Road Show. As of the determination date referenced in Rule 164(h) under the Securities Act, the
Company was not, is not or will not be (as applicable) an “ineligible issuer” in connection with the offering of the Offered
Shares pursuant to Rules 164, 405 and 433 under the Securities Act. Each free writing prospectus that the Company is required to
file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the
requirements of the Securities Act. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material
respects with the requirements of Rule 433 under the Securities Act, including timely filing with the Commission, retention and legending,
as applicable, and each such free writing prospectus, as of its issue date and at all subsequent times through the completion of the public
offer and sale of the Offered Shares did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the Prospectus or any preliminary prospectus unless such information has
been superseded or modified as of such time. The representations and warranties set forth in the immediately preceding sentence do not
apply to statements made in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company
in writing by the Representatives expressly for use therein, it being understood and agreed that the only such information consists of
the information described in Section 9(b) below. Except for the free writing prospectuses, if any, identified in Schedule B,
and electronic road shows, if any, furnished to you before first use, the Company has not prepared, used or referred to, and will not,
without your prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), prepare, use or refer to,
any free writing prospectus. Each Road Show, when considered together with the Time of Sale Prospectus, did not, as of the Applicable
Time, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) Directed
Share Program. (i) The Registration Statement, the Prospectus, the Time of Sale Prospectus and any preliminary prospectus
comply, and any further amendments or supplements thereto will comply, with any applicable laws or regulations of foreign jurisdictions
in which the Prospectus, Time of Sale Prospectus or any preliminary prospectus, as amended or supplemented, if applicable, are distributed
in connection with the Directed Share Program, and (ii) no authorization, approval, consent, license, order registration or qualification
of or with any government, governmental instrumentality or court, other than such as have been obtained, is necessary under the securities
laws and regulations of foreign jurisdictions in which the Directed Shares are offered outside the United States. The Company has not
offered, or caused the Underwriters to offer, any Offered Shares to any person pursuant to the Directed Share Program with the intent
to unlawfully influence (i) a customer or supplier of the Company to alter the customer’s or supplier’s level or type
of business with the Company or (ii) a trade journalist or publication to write or publish favorable information about the Company
or its products.
(e) Distribution
of Offering Material By the Company. Prior to the later of (i) the expiration or termination of the option granted to the
several Underwriters in Section 2, (ii) the completion of the Underwriters’ distribution of the Offered Shares and (iii) the
expiration of 25 days after the date of the Prospectus, the Company has not distributed and will not distribute any offering material
in connection with the offering and sale of the Offered Shares other than the Registration Statement, the Time of Sale Prospectus, the
Prospectus or any free writing prospectus reviewed and consented to by the Representatives, the free writing prospectuses, if any, identified
on Schedule B hereto and any Permitted Section 5(d) Communications.
(f) The
Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(g) Authorization
of the Offered Shares. The Offered Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when
issued and delivered by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable,
and the issuance and sale of the Offered Shares is not subject to any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Offered Shares that have not been duly waived or satisfied.
(h) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived or satisfied.
(i) No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the
Prospectus: (i) there has been no material adverse change, or any development that would reasonably be expected to result in a material
adverse change, in (A) the condition, financial or otherwise, or in the earnings, business, properties, operations, operating results,
assets, liabilities or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity or (B) the ability of the Company to consummate the transactions contemplated by this Agreement
or perform its obligations hereunder (any such change being referred to herein as a “Material Adverse Change”); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent,
including without limitation any losses or interference with their business from fire, explosion, flood, earthquakes, accident or other
calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order or decree, that
are material, individually or in the aggregate, to the Company and its subsidiaries, considered as one entity, and have not entered into
any material transactions not in the ordinary course of business; and (iii) there has not been any material decrease in the capital
stock (other than the issuance of any stock upon the Corporate Reorganization (defined herein) described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus) or any material increase in any short-term or long-term indebtedness of the Company or
its subsidiaries and there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends
paid to the Company or other subsidiaries, by any of the Company’s subsidiaries on any class of capital stock, or any repurchase
or redemption by the Company or any of its subsidiaries of any class of capital stock.
(j) Independent
Accountants. Ernst & Young LLP, which has expressed its opinion with respect to the financial statements of Apogee LLC
and its consolidated subsidiary (which term as used in this Agreement includes the related notes thereto) filed with the Commission as
a part of the Registration Statement, the Time of Sale Prospectus and the Prospectus, is (i) an independent registered public accounting
firm as required by the Securities Act and the rules of the Public Company Accounting Oversight Board (“PCAOB”),
(ii) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation
S-X under the Securities Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration has not been
suspended or revoked and who has not requested such registration to be withdrawn.
(k) Financial
Statements. The financial statements filed with the Commission as a part of the Registration Statement, the Time of Sale Prospectus
and the Prospectus present fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as
of the dates indicated and the results of their operations, changes in stockholders’ equity and cash flows for the periods specified.
Such financial statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) as
applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related
notes thereto, and except in the case of unaudited financial statements, which are subject to normal and recurring year-end adjustments
and do not contain certain footnotes as permitted by the applicable rules of the Commission. No other financial statements or supporting
schedules are required to be included in the Registration Statement, the Time of Sale Prospectus or the Prospectus. The financial data
set forth in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus under the captions “Prospectus Summary—Summary
Consolidated Financial Data” and “Capitalization” fairly present, in all material respects, the information set forth
therein on a basis consistent with that of the audited financial statements contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus. To the Company’s knowledge, no person who has been suspended or barred from being associated with
a registered public accounting firm, or who has failed to comply with any sanction pursuant to Rule 5300 promulgated by the PCAOB,
has participated in or otherwise aided the preparation of, or audited, the financial statements, supporting schedules or other financial
data filed with the Commission as a part of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(l) Company’s
Accounting System. The Company and its subsidiaries make and keep books and records that are accurate in all material respects
and maintain a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP as applied in the United States and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(m) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting. The Company has established
and maintains disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)), which (i) are designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company’s principal executive officer and its principal financial
officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act
are being prepared, it being understood that neither subsection (k) nor this subsection (l) requires the Company to
comply with Section 404 of the Sarbanes Oxley Act of 2002 as of an earlier date than it would otherwise be required to so comply
under applicable law; (ii) are designed such that management of the Company will evaluate effectiveness thereof as of the end of
the Company’s most recent fiscal quarter, as required by the Exchange Act; and (iii) are effective in all material respects
to perform the functions for which they were established. Since the end of the Company’s most recent audited fiscal year, there
have been no significant deficiencies or material weaknesses in the Company’s internal control over financial reporting (whether
or not remediated) and 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 is
not aware of any change in its internal control over financial reporting that has occurred during its most recent fiscal quarter that
has materially adversely affected, or is reasonably likely to materially adversely affect, the Company’s internal control over financial
reporting.
(n) Incorporation
and Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and to enter into
and perform its obligations under this Agreement. The Company is duly qualified as a foreign corporation 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 a failure to be so qualified or in good standing would not reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Change. The merger of Apogee LLC with and into Apogee Therapeutics, Inc. and
the exchange of all outstanding membership interests in Apogee LLC for shares of common stock or non-voting common stock of Apogee Therapeutics, Inc.
were duly authorized by Apogee LLC and ratified by Apogee Therapeutics, Inc.
(o) Subsidiaries.
Each of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities
Act) has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, partnership or limited liability
company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization and has the power and
authority (corporate or other) to own, lease and operate its properties and to conduct its business as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, except where the failure to be in good standing would not reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Change. Each of the Company’s subsidiaries is duly qualified as a foreign corporation,
partnership or limited liability company, as applicable, 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 be in good standing would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. All
of the issued and outstanding capital stock or other equity or ownership interests of each of the Company’s subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim. None of the outstanding capital stock or equity
interest in any subsidiary was issued in violation of preemptive or similar rights of any security holder of such subsidiary. The constitutive
or organizational documents of each of the subsidiaries comply in all material respects with the requirements of applicable laws of its
jurisdiction of incorporation or organization and are in full force and effect. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Registration Statement.
(p) Capitalization
and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus under the caption “Capitalization” (other than for subsequent issuances,
if any, pursuant to employee benefit plans, upon the exercise of outstanding options or warrants, or in connection with the Corporate
Reorganization effected in connection with the public offering contemplated hereby, in each case as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus). The Shares (including the Offered Shares) conform in all material respects to the description
thereof contained in the Time of Sale Prospectus. All of the issued and outstanding Shares have been duly authorized and validly issued,
are fully paid and nonassessable and have been issued in compliance with all applicable federal and state securities laws. None of the
outstanding Shares were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for
or purchase securities of the Company that have not been duly waived or satisfied. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable
or exercisable for, any capital stock of the Company, or any of its subsidiaries other than those described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus. The descriptions of the Company’s stock option, stock bonus and other stock plans
or arrangements, and the options or other rights granted thereunder, set forth in the Registration Statement, the Time of Sale Prospectus
and the Prospectus accurately and fairly present, in all material respects, the information required to be shown with respect to such
plans, arrangements, options and rights.
(q) Stock
Exchange Listing. The Offered Shares have been approved for listing on The Nasdaq Global Market (“Nasdaq”),
subject only to official notice of issuance.
(r) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable,
or is in default (or, with the giving of notice or lapse of time, would be in default) (“Default”) under any indenture,
loan, credit agreement, note, lease, license agreement, contract, franchise or other instrument (including, without limitation, any pledge
agreement, security agreement, mortgage or other instrument or agreement evidencing, guaranteeing, securing or relating to indebtedness)
to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of their respective
properties or assets are subject (each, an “Existing Instrument”), except for such Defaults as would not reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Change. The Company’s execution, delivery and performance
of this Agreement, consummation of the transactions contemplated hereby and by the Registration Statement, the Time of Sale Prospectus
and the Prospectus and the issuance and sale of the Offered Shares (including the use of proceeds from the sale of the Offered Shares
as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”)
(i) have been duly authorized by all necessary corporate action and will not result in any violation of the provisions of the charter
or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable, of the Company or any of
its subsidiaries, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument, except for such conflicts,
breaches, Default or Debt Repayment Triggering Events or liens, charges or encumbrances that would not, singly or in the aggregate, result
in a Material Adverse Change, and (iii) will not result in any violation of any law, administrative regulation or administrative
or court decree applicable to the Company or any of its subsidiaries, except for such violations as would not be expected, individually
or in the aggregate, to result in a Material Adverse Change. No consent, approval, authorization or other order of, or registration or
filing with, any court or other governmental or regulatory authority or agency, is required for the Company’s execution, delivery
and performance of this Agreement and consummation of the transactions contemplated hereby and by the Registration Statement, the Time
of Sale Prospectus and the Prospectus, except such as have been obtained or made by the Company and are in full force and effect under
the Securities Act and such as may be required under applicable state securities or blue sky laws or the FINRA. As used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time would give,
the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(s) Compliance
with Laws. The Company and its subsidiaries have been and are in compliance with all applicable laws, rules and regulations,
except where failure to be so in compliance could not be expected, individually or in the aggregate, to result in a Material Adverse Change.
(t) No
Material Actions or Proceedings. There is no action, suit, proceeding, inquiry or investigation brought by or before any legal
or governmental entity now pending or, to the Company’s knowledge, threatened, against or affecting the Company or any of its subsidiaries,
which would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. No material labor dispute
with the employees of the Company or any of its subsidiaries, or with the employees of any principal supplier, manufacturer, customer
or contractor of the Company, exists or, to the Company’s knowledge, is threatened or imminent, which would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Change.
(u) Intellectual
Property Rights. The Company and its subsidiaries own, or have obtained valid and enforceable licenses for the material inventions,
patent applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus as being owned or licensed by them or, to the Company’s
knowledge, which are necessary for the conduct of their respective businesses as currently conducted or as currently proposed to be conducted
as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus (collectively, “Intellectual Property”),
and, to the Company’s knowledge, the conduct of their respective businesses does not currently infringe, misappropriate or otherwise
conflict in any material respect with any such rights of others. The Intellectual Property owned or licensed by the Company has not been
adjudged by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, and the Company is unaware of any facts
which would form a reasonable basis for any such adjudication. To the Company’s knowledge: (i) there are no third parties who
have rights to any Intellectual Property, except for customary reversionary rights of third-party licensors with respect to Intellectual
Property that is disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus as licensed to the Company or
one or more of its subsidiaries; and (ii) there is no infringement by third parties of any Intellectual Property. There is no action,
suit or other proceeding that is pending or is threatened in writing: (A) challenging the Company’s rights in or to any Intellectual
Property; (B) challenging the validity, enforceability or scope of any Intellectual Property; or (C) asserting that the Company
or any of its subsidiaries infringes or otherwise violates any patent, trademark, trade name, service name, copyright, trade secret or
other proprietary rights of others. The Company and its subsidiaries have complied in all material respects with the terms of each agreement
pursuant to which Intellectual Property has been licensed to the Company or any of its subsidiaries, and, to the Company’s knowledge,
all such agreements are in full force and effect. To the Company’s knowledge, there are no material defects in any of the patents
or patent applications included in the Intellectual Property. To the Company’s knowledge, the Company and its subsidiaries have
taken all commercially reasonable steps to protect, maintain and safeguard their Intellectual Property, including the execution of appropriate
nondisclosure, confidentiality agreements and invention assignment agreements and invention assignments with their employees, and no employee
of the Company is in or has been in violation of any term relating to Intellectual Property in any employment contract, patent disclosure
agreement, invention assignment agreement, nondisclosure agreement or any restrictive covenant relating to any Intellectual Property to
or with a former employer where the basis of such violation relates to such employee’s employment with the Company. To the Company’s
knowledge, the duty of candor and good faith as required by the United States Patent and Trademark Office (“USPTO”)
during the prosecution of the United States patents and patent applications included in the Intellectual Property have been complied with.
To the Company’s knowledge, there is no prior art that may render any patent within the Intellectual Property invalid or that may
render any patent application within the Intellectual Property unpatentable that has not been disclosed to the USPTO. The product candidates
under development by the Company or any of its subsidiaries and described as covered by one or more patents or applications in the Registration
Statement, the Time of Sale Prospectus and the Prospectus fall within the scope of the claims of those patents or applications, owned
by, or exclusively licensed to, the Company or any of its subsidiaries. To the Company’s knowledge, all patents and patent applications
owned by or licensed to the Company and its subsidiaries, or under which the Company or any of its subsidiaries has rights have, been
duly and properly filed and maintained.
(v) All
Necessary Permits, etc. The Company and its subsidiaries possess such valid and current licenses, certificates, authorizations,
approvals, consents or permits required by state, federal or foreign regulatory agencies or bodies to conduct their respective businesses
as currently conducted and as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus (“Permits”),
except where failure to so possess would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse
Change. Neither the Company nor any of its subsidiaries is in violation of, or in default under, any of the Permits or has received any
written notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization
or permit, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change.
(w) Title
to Properties. The Company and its subsidiaries have good and marketable title to all of the real and personal property and other
assets reflected as owned in the financial statements referred to in Section 1(j) above (or elsewhere in the Registration Statement,
the Time of Sale Prospectus or the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances,
equities, adverse claims and other defects, except where failure to have such title would not be expected, individually or in the aggregate,
to result in a Material Adverse Change (provided that, for the avoidance of doubt, rights to Intellectual Property are addressed exclusively
in Section 1(u) above). The real property, improvements, equipment and personal property held under lease by the Company or
any of its subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company or such subsidiary.
(x) Tax
Law Compliance. The Company and its subsidiaries have timely filed all necessary federal, state and foreign income and franchise
tax returns or have properly requested extensions thereof and have timely paid all taxes required to be paid by any of them and, if due
and payable, any related or similar assessment, fine or penalty levied against any of them except as may be being contested in good faith
and by appropriate proceedings or where failure to do so could not reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Change. The Company has made adequate charges, accruals and reserves in the applicable financial statements referred
to in Section 1(j) above in respect of all federal, state and foreign income and franchise taxes for all periods as to which
the tax liability of the Company or any of its subsidiaries has not been finally determined, except to the extent that failure to do so
would not be expected to result in a Material Adverse Change.
(y) Insurance.
Each of the Company and its subsidiaries are insured by recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as the Company reasonably believes are generally adequate and customary for
their businesses including, but not limited to, policies covering real and personal property owned or leased by the Company and its subsidiaries
against theft, damage, destruction and acts of vandalism, and earthquakes and policies covering the Company and its subsidiaries for product
liability claims and clinical trial liability claims. The Company has no reason to believe that it or any of its subsidiaries will not
be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably
be expected to result in a Material Adverse Change. Neither the Company nor any of its subsidiaries has been denied any insurance coverage
which it has sought or for which it has applied.
(z) Compliance
with Environmental Laws. Except as could not be expected, individually or in the aggregate, to result in a Material Adverse Change:
(i) 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 (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”);
(ii) 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; (iii) there are no pending or, to the Company’s knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries; and (iv) to the Company’s
knowledge, there are no events or circumstances that might 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 body or agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(aa) Periodic
Review of Costs of Environmental Compliance. In the ordinary course of its business, the Company conducts a periodic review of
the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which
it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). No facts or circumstances have come to the Company’s attention
that could result in costs or liabilities that would reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Change.
(bb) ERISA
Compliance. The Company and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its subsidiaries or, to the Company’s knowledge, their “ERISA Affiliates”
(as defined below) are in compliance in all material respects with ERISA. “ERISA Affiliate” means, with respect to
the Company or any of its subsidiaries, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”)
of which the Company or such subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries or
any of their ERISA Affiliates that would reasonably be expected to result in material liability to the Company or its subsidiaries. No
“employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under
ERISA) that would reasonably be expected to result in material liability to the Company and its subsidiaries. Neither the Company, its
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any material liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971,
4975 or 4980B of the Code. Each employee benefit plan established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the Company’s knowledge,
nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
(cc) Company
Not an “Investment Company.” The Company is not, and will not be, either after receipt of payment for the Offered
Shares or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement,
the Time of Sale Prospectus or the Prospectus, required to register as an “investment company” under the Investment Company
Act of 1940, as amended (the “Investment Company Act”).
(dd) No
Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, without giving effect to any activities by the Underwriters, any action designed to or that would reasonably be
expected to cause or result in stabilization or manipulation of the price of the Shares or of any “reference security” (as
defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) with respect to the Shares, whether
to facilitate the sale or resale of the Offered Shares or otherwise, and has taken no action which would directly or indirectly violate
Regulation M.
(ee) Related-Party
Transactions. There are no business relationships or related-party transactions involving the Company or any of its subsidiaries
or any other person required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus that have not
been described as required.
(ff) FINRA
Matters. All of the information provided to the Underwriters or to counsel for the Underwriters by the Company, its counsel, its
officers and directors and, to the Company’s knowledge, the holders of any securities (debt or equity) or options to acquire any
securities of the Company in connection with the offering of the Offered Shares is true, complete and correct in all material respects
and compliant with FINRA’s rules and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA
Rules or NASD Conduct Rules is true, complete and correct in all material respects.
(gg) Parties
to Lock-Up Agreements. The Company has furnished to the Underwriters a letter agreement in the form attached hereto as Exhibit A
(the “Lock-up Agreement”) from the directors and officers of the Company and from [substantially] all securityholders
of the Company. If any additional persons shall become directors or officers (as defined in Rule 16a-1(f) under the Exchange
Act) of the Company prior to the end of the Company Lock-up Period (as defined below), the Company shall cause each such person, prior
to or contemporaneously with their appointment or election as a director or officer of the Company, to execute and deliver to the Representatives
a Lock-up Agreement.
(hh) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement, the Time
of Sale Prospectus or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable
and accurate in all material respects. To the extent required, the Company has obtained the written consent to the use of such data from
such sources.
(ii) Sarbanes-Oxley
Act. There is, and has been, no failure on the part of the Company or any of its directors or officers, in their capacities as
such, to comply with any applicable provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated
in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(jj) Corporate
Reorganization. (i) The description of the transactions described under the caption “Reorganization” in the Registration
Statement, the Time of Sale Prospectus and the Prospectus (such transactions, collectively, the “Corporate Reorganization”)
is accurate in all material respects, (ii) all transactions required to give effect to the Corporate Reorganization have been consummated,
and (iii) all consents, approvals, waivers and amendments, if any, necessary in connection with the Corporate Reorganization have
been obtained and are in full force and effect.
(kk) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge,
any employee or agent of the Company or any subsidiary, has made any contribution or other payment to any official of, or candidate for,
any federal, state or foreign office in violation of any applicable law or of the character required to be disclosed in the Registration
Statement, the Time of Sale Prospectus or the Prospectus.
(ll) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries, directors, officers or employees of the Company or any
of its subsidiaries, nor, to the Company’s knowledge, any agent, affiliate or other representative acting on behalf of the Company
or any of its subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its subsidiaries (i) used
any corporate funds for any unlawful expense relating to political activity, including any contribution, gift, entertainment or other
expenses; (ii) made or taken any act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment
or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or public
international organization, or any political party, party official, or candidate for political office; (iii) violated or is in violation
of any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the UK Bribery
Act 2010, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, authorized, requested, or taken an
act in furtherance of any unlawful bribe, rebate, payoff, influence payment, kickback or other benefit. The Company and its subsidiaries
and, to the Company’s knowledge, the Company’s affiliates, have conducted their respective businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith. 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 any applicable anti-bribery or anti-corruption laws.
(mm) Money
Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable
rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the Company’s
knowledge, threatened.
(nn) Sanctions.
Neither the Company nor any of its subsidiaries, directors, officers or employees, nor, to the Company’s knowledge, any agent, affiliate
or other representative acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the
U.S. Department of State, the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom,
or other relevant sanctions authority (collectively, “Sanctions”); nor is the Company or any of its subsidiaries located,
organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Crimea,
so-called Donetsk People’s Republic and so-called Luhansk People’s Republic regions of Ukraine, Cuba, Iran, North Korea,
and Syria; and the Company will not directly or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of
or business with any person, or in any country or territory, that at the time of such financing, is the subject or the target of Sanctions
prohibiting such activities or business, in violation of Sanctions, or in any other manner that will result in a violation by any person
(including any person participating in the transaction whether as underwriter, advisor, investor or otherwise) of applicable Sanctions.
Since their inception, the Company and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings
or transactions with any person, country or territory that at the time of the dealing or transaction is or was the subject or the target
of Sanctions prohibiting such dealing or transaction, in violation of Sanctions.
(oo) Brokers.
Except pursuant to this Agreement and as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee
or commission as a result of any transactions contemplated by this Agreement.
(pp) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A
of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement, the Time of Sale Prospectus or
the Prospectus (i) was so included by the Company in good faith and with reasonable basis after due consideration by the Company
of the underlying assumptions, estimates and other applicable facts and circumstances and (ii) is accompanied by meaningful cautionary
statements identifying those factors that could cause actual results to differ materially from those in such forward-looking statement.
No such statement was made with the knowledge of an executive officer or director of the Company that was false or misleading.
(qq) No
Outstanding Loans or Other Extensions of Credit. The Company does not have any outstanding extension of credit, in the form of
a personal loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions of credit
as are expressly permitted by Section 13(k) of the Exchange Act.
(rr) Cybersecurity.
Except as would not reasonably be expected to result in a Material Adverse Change, the Company and its subsidiaries’ information
technology assets and equipment, computers, systems, networks, hardware, software, websites, applications and databases over which they
have control (collectively, “IT Systems”) are adequate for, and operate and perform as required in connection with
the operation of the business of the Company and its subsidiaries as currently conducted, and, to the Company’s knowledge, are free
and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries have
implemented and maintained commercially reasonable physical, technical and administrative controls designed to maintain and protect the
confidentiality, integrity, availability, privacy and security of all sensitive, confidential or regulated data of the Company or maintained
by the Company on behalf of third parties (“Confidential Data”) used or maintained in connection with their businesses
and Personal Data (as defined below), and the integrity, continuous operation, redundancy and security of all IT Systems. “Personal
Data” means the following data received, used, stored, maintained, or otherwise processed in connection with the Company’s
and its subsidiaries’ businesses and in their possession or control: (i) a natural person’s name, street address, telephone
number, e-mail address, photograph, social security number or other tax identification number, driver’s license number, passport
number, credit card number, bank information, or customer or account number; (ii) information that identifies, relates to, or may
reasonably be used to identify an individual; (iii) any information regarding an individual’s medical history, mental or physical
condition, or medical treatment or diagnosis by a health care professional; (iv) an individual’s health insurance policy number
or subscriber identification number, any unique identifier used by a health insurer to identify the individual, or any information in
an individual’s application and claims history; (v) any information which would qualify as “protected health information”
under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and
Clinical Health Act (collectively, “HIPAA”); (vi) any information which would qualify as “personal data,”
“personal information” (or similar term) under the Privacy Laws (as defined below); and (vii) any other piece of information
that alone, or combined with other information, allows the identification of such natural person, or his or her family, or permits the
collection or analysis of any data related to an identified person’s health or sexual orientation. To the Company’s knowledge,
there have been no breaches, violations, outages or unauthorized uses of or accesses to same nor any incidents under internal review or
investigations relating to the same, including, without limitation, with respect to the Company’s IT Systems and Confidential Data
or Personal Data, except for those that have been remedied without material cost or liability or the duty to notify any other person.
The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments and orders
binding the Company, applicable binding rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations, each relating to the Processing (as defined below), privacy and security of Confidential
Data, the privacy and security of IT Systems and the protection of such IT Systems and Confidential Data from unauthorized use, access,
misappropriation or modification.
(ss) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations regarding the collection, use, storage, retention, disclosure, transfer,
disposal, or any other processing (collectively “Process” or “Processing”) of Personal Data, including
without limitation HIPAA. Currently, the Company does not meet the thresholds required for compliance with the California Consumer Privacy
Act (“CCPA”), the California Privacy Rights Act (“CPRA”), or other similar state privacy laws, nor
does the Company meet the conditions that would require that it comply with the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679), and the UK GDPR. The Company intends to, and will, be in compliance with the CCPA, the CPRA, other similar state privacy
laws, the GDPR and the UK GDPR when such laws apply to the Company. HIPAA, CCPA, CPRA, other similar state privacy laws, GDPR and the
UK GDPR are collectively, the “Privacy Laws.” To ensure compliance with applicable Privacy Laws, the Company and its
subsidiaries have in place, comply with, and take all appropriate steps necessary to ensure compliance in all material respects with their
policies and procedures relating to data privacy and security, and the Processing of Confidential Data (the “Privacy Statements”).
The Company and its subsidiaries have, except as would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Change, at all times since inception provided accurate and complete notice of its Privacy Statements then in effect to its customers,
employees, third party vendors and representatives, including as required by applicable laws and regulatory rules or requirements.
None of such disclosures made or contained in any Privacy Statement have been materially inaccurate or in material violation of any applicable
Privacy Laws. The execution, delivery and performance of this Agreement or any other agreement referred to in this Agreement, will not
result in a breach or violation of any Privacy Laws or Privacy Statements. The Company further represents that neither it nor any subsidiary:
(i) has received written notice of any actual or potential claim, complaint, proceeding, regulatory proceeding or liability under
or relating to, or actual or potential violation of, any of the Privacy Laws, contracts related to the Processing of Confidential Data
or Privacy Statements, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice;
(ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant
to any Privacy Law or contract; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under
any Privacy Law.
(tt) Emerging
Growth Company Status. From the time of initial confidential submission of the Registration Statement to the Commission (or,
if earlier, the first date on which the Company engaged in any Section 5(d) Written Communication or any Section 5(d) Oral
Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of
the Securities Act (an “Emerging Growth Company”).
(uu) Communications.
The Company (i) has not alone engaged in communications with potential investors in reliance on Section 5(d) of the
Securities Act other than Permitted Section 5(d) Communications or Section 5(d) Oral Communications, in each case,
with the consent of the Representatives with entities that are QIBs or IAIs or those reasonably believed to be QIBs or IAIs and (ii) has
not authorized anyone other than the Representatives to engage in such communications; the Company reconfirms that the Representatives
have been authorized to act on its behalf in undertaking Marketing Materials, Section 5(d) Oral Communications and Section 5(d) Written
Communications; as of the Applicable Time, each Permitted Section 5(d) Communication, when considered together with the Time
of Sale Prospectus, did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
each Permitted Section 5(d) Communication, if any, does not, as of the date hereof, conflict with the information contained
in the Registration Statement, the Preliminary Prospectus and the Prospectus (except where such Permitted Section 5(d) Communication
has been superseded by the information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus); and the
Company has filed publicly on EDGAR at least 15 calendar days prior to any “road show” (as defined in Rule 433 under
the Securities Act), any confidentially submitted registration statement and registration statement amendments relating to the offer
and sale of the Offered Shares.
(vv) Clinical
Data and Regulatory Compliance. The preclinical tests and clinical trials, and other studies conducted by or on behalf of the
Company or its subsidiaries (collectively, “studies”) that are described in, or the results of which are referred to
in, the Registration Statement, the Time of Sale Prospectus or the Prospectus were and, if still pending, are being conducted in all material
respects in accordance with the protocols, procedures and controls designed and approved for such studies and with standard medical and
scientific research procedures; each description of the results of such studies is accurate and complete in all material respects and
fairly presents in all material respects the data derived from such studies, and the Company and its subsidiaries have no knowledge of
any other studies the results of which are materially inconsistent with, or otherwise reasonably call into question in any material respect,
the results described or referred to in the Registration Statement, the Time of Sale Prospectus or the Prospectus; the Company and its
subsidiaries have made all such filings and obtained all such approvals as required by the Food and Drug Administration of the U.S. Department
of Health and Human Services or from any other U.S. or foreign government or drug regulatory agency, or health care facility Institutional
Review Board, each having jurisdiction over biopharmaceutical products (collectively, the “Regulatory Agencies”) for
the conduct of its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except where the
failure to do so would not reasonably be expected to result in a Material Adverse Change; neither the Company nor any of its subsidiaries
has received any written notice of, or correspondence from, any Regulatory Agency requiring the termination or suspension of any clinical
trials that are described or referred to in the Registration Statement, the Time of Sale Prospectus or the Prospectus; and the Company
and its subsidiaries have each operated and currently are in compliance in all material respects with all applicable rules, regulations
and policies of the Regulatory Agencies.
(ww) Compliance
with Health Care Laws. The Company and its subsidiaries are, and at all times have been, in compliance with all Health Care Laws
in all material respects and to the extent applicable to the Company’s current business. For purposes of this Agreement, “Health
Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), the Public Health
Service Act (42 U.S.C. Section 201 et seq.), and the regulations promulgated thereunder; (ii) all applicable federal, state,
local and foreign health care fraud and abuse laws, including, without limitation, the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b));
(iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et
seq.); (iv) the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act
of 2010; (v) licensure, quality, safety and accreditation requirements under applicable federal, state, local or foreign laws or
regulatory bodies; and (vi) all other local, state, federal, national, supranational and foreign laws, relating to the regulation
of the Company or its subsidiaries, and (vii) the directives and regulations promulgated pursuant to such statutes and any state
or non-U.S. counterpart thereof. Neither the Company nor any of its subsidiaries has received written notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or governmental or regulatory
authority or third party alleging that any product operation or activity is in material violation of any Health Care Laws nor, to the
Company’s knowledge, is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action
threatened. The Company and its subsidiaries have filed, maintained or submitted all material reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments as required by any Health Care Laws, and all such reports, documents, forms,
notices, applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed in all
material respects (or were corrected or supplemented by a subsequent submission). Neither the Company nor any of its subsidiaries is a
party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or
imposed by any governmental or regulatory authority. Additionally, neither the Company, any of its subsidiaries nor any of their respective
employees, officers, directors, or, to the Company’s knowledge, agents has been excluded, suspended or debarred from participation
in any U.S. federal health care program or human clinical research or, to the Company’s knowledge, is subject to a governmental
inquiry, investigation, proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(xx) No
Contract Terminations. Neither the Company nor any of its subsidiaries has sent or received any communication regarding termination
of, or intent not to renew, any of the contracts or agreements referred to or described in any preliminary prospectus, the Prospectus
or any free writing prospectus, or referred to or described in, or filed as an exhibit to, the Registration Statement, and no such termination
or non-renewal has been threatened by the Company or any of its subsidiaries or, to the Company’s knowledge, any other party to
any such contract or agreement, which threat of termination or non-renewal has not been rescinded as of the date hereof.
(yy) Dividend
Restrictions. No subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company,
or from making any other distribution with respect to such subsidiary’s equity securities or from repaying to the Company or any
other subsidiary of the Company any amounts that may from time to time become due under any loans or advances to such subsidiary from
the Company or from transferring any property or assets to the Company or to any other subsidiary.
Any certificate signed by any officer of the Company
or any of its subsidiaries and delivered to any Underwriter or to counsel for the Underwriters in connection with the offering, or the
purchase and sale, of the Offered Shares shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
The Company has a reasonable basis for making each
of the representations set forth in this Section 1. The Company acknowledges that the Underwriters and, for purposes of the opinions
to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy
and truthfulness of the foregoing representations and hereby consents to such reliance.
Section 2. Purchase,
Sale and Delivery of the Offered Shares.
(a) The
Firm Shares. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of
[●] Firm Shares. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject
to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the respective number
of Firm Shares set forth opposite their names on Schedule A. The purchase price per Firm Share to be paid by the several Underwriters
to the Company shall be $[●] per share.
(b) The
First Closing Date. Delivery of the Firm Shares to be purchased by the Underwriters and payment therefor shall be made at the
offices of Cooley LLP, 55 Hudson Yards, New York, NY 10001 (or such other place as may be agreed to by the Company and the Representatives)
at 9:00 a.m. New York City time, on [●], 2023, or such other time and date not later than 1:30 p.m. New York City
time, on [●], 2023 as the Representatives shall designate by notice to the Company (the time and date of such closing are called
the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representatives may provide
notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or
the Representatives to recirculate to the public copies of an amended or supplemented Prospectus or a delay as contemplated by the provisions
of Section 11.
(c) The
Optional Shares; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of [●] Optional Shares from the Company at the purchase price per share
to be paid by the Underwriters for the Firm Shares. The option granted hereunder may be exercised at any time and from time to time in
whole or in part upon notice by the Representatives to the Company, which notice may be given at any time within 30 days from the
date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Shares as to which the Underwriters are
exercising the option and (ii) the time, date and place at which the Optional Shares will be delivered (which time and date may be
simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First
Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Shares and such
Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,”
shall be determined by the Representatives and shall not be earlier than two or later than five full business days after delivery of such
notice of exercise. If any Optional Shares are to be purchased, (a) each Underwriter agrees, severally and not jointly, to purchase
the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears
the same proportion to the total number of Optional Shares to be purchased as the number of Firm Shares set forth on Schedule A
opposite the name of such Underwriter bears to the total number of Firm Shares and (b) the Company agrees to sell the number of Optional
Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine). The Representatives may cancel
the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
(d) Public
Offering of the Offered Shares. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to
the public, initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, their respective
portions of the Offered Shares as soon after this Agreement has been executed and the Registration Statement has been declared effective
as the Representatives, in their sole judgment, have determined is advisable and practicable.
(e) Payment
for the Offered Shares. (i) Payment for the Offered Shares to be sold by the Company shall be made at the First Closing Date
(and, if applicable, at each Option Closing Date) by wire transfer of immediately available funds to the order of the Company.
(ii) It
is understood that the Representatives have been authorized, for their own account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the Firm Shares and any Optional Shares the Underwriters have
agreed to purchase. Each of Jefferies, Cowen, Stifel and Guggenheim, individually and not as the Representatives of the Underwriters,
may (but shall not be obligated to) make payment for any Offered Shares to be purchased by any Underwriter whose funds shall not have
been received by the Representatives by the First Closing Date or the applicable Option Closing Date, as the case may be, for the account
of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
(f) Delivery
of the Offered Shares. The Company shall deliver, or cause to be delivered to the Representatives for the accounts of the several
Underwriters the Firm Shares at the First Closing Date, against release of a wire transfer of immediately available funds for the amount
of the purchase price therefor. The Company shall also deliver, or cause to be delivered to the Representatives for the accounts of the
several Underwriters, the Optional Shares the Underwriters have agreed to purchase from them at the First Closing Date or the applicable
Option Closing Date, as the case may be, against the release of a wire transfer of immediately available funds for the amount of the purchase
price therefor. If Jefferies so elects, delivery of the Offered Shares may be made by credit to the accounts designated by Jefferies through
The Depository Trust Company’s full fast transfer or DWAC programs. If Jefferies so elects, any certificates for the Offered Shares
shall be registered in such names and denominations as the Representatives shall have requested at least two full business days prior
to the First Closing Date (or the applicable Option Closing Date, as the case may be) and shall be made available for inspection on the
business day preceding the First Closing Date (or the applicable Option Closing Date, as the case may be) at a location in New York City
as the Representatives may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is
a further condition to the obligations of the Underwriters.
Section 3. Additional
Covenants of the Company. The Company further covenants and agrees with each Underwriter as follows:
(a) Delivery
of Registration Statement, Time of Sale Prospectus and Prospectus. The Company shall furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period
when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically or through compliance
with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Offered Shares, as many copies of the
Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Representatives’
Review of Proposed Amendments and Supplements. During the period when a prospectus relating to the Offered Shares is required
by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule), the Company (i) will furnish to the Representatives for review, a reasonable period of time prior to the proposed time of
filing of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or supplement and (ii) will
not amend or supplement the Registration Statement without the Representatives’ prior written consent, which shall not be unreasonably
withheld, conditioned or delayed. Prior to amending or supplementing any preliminary prospectus, the Time of Sale Prospectus or the Prospectus,
the Company shall furnish to the Representatives for review, a reasonable amount of time prior to the time of filing or use of the proposed
amendment or supplement, a copy of each such proposed amendment or supplement. The Company shall not file or use any such proposed amendment
or supplement without the Representatives’ prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
The Company shall file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) Free
Writing Prospectuses. The Company shall furnish to the Representatives for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto prepared by or on
behalf of, used by, or referred to by the Company, and the Company shall not file, use or refer to any proposed free writing prospectus
or any amendment or supplement thereto without the Representatives’ prior written consent, which shall not be unreasonably withheld,
conditioned or delayed. The Company shall furnish to each Underwriter, without charge, as many copies of any free writing prospectus prepared
by or on behalf of, used by or referred to by the Company as such Underwriter may reasonably request. If at any time when a prospectus
is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act
or any similar rule) in connection with sales of the Offered Shares (but in any event if at any time through and including the First Closing
Date) there occurred or occurs an event or development as a result of which any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company conflicted or would conflict with the information contained in the Registration Statement or included
or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at such time, not misleading, the Company shall promptly amend or supplement
such free writing prospectus to eliminate or correct such conflict so that the statements in such free writing prospectus as so amended
or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at such time, not misleading, as the case may be; provided, however,
that prior to amending or supplementing any such free writing prospectus, the Company shall furnish to the Representatives for review,
a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented free
writing prospectus, and the Company shall not file, use or refer to any such amended or supplemented free writing prospectus without the
Representatives’ prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
(d) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any action that would result in an Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared
by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(e) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is being used to solicit offers to buy the Offered
Shares at a time when the Prospectus is not yet available to prospective purchasers, and any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale Prospectus does not include
an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances when delivered to a prospective purchaser, not misleading, or if any event shall occur or condition exist as a result
of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company
shall (subject to Section 3(b) and Section 3(c) hereof) promptly prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so
that the statements in the Time of Sale Prospectus as so amended or supplemented will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when delivered to
a prospective purchaser, not misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with
the information contained in the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
(f) Certain
Notifications and Required Actions. After the date of this Agreement, and until the later of one year from the date of this Agreement
or the expiration of the prospectus delivery period, the Company shall promptly advise the Representatives in writing (which may be by
electronic mail) of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission
relating to the Registration Statement; (ii) the time and date of any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the
Prospectus; (iii) the time and date that any post-effective amendment to the Registration Statement becomes effective; and (iv) the
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus or the Prospectus or of any order preventing
or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus, or, if
the Company gains knowledge of such proceeding, of any proceedings to remove, suspend or terminate from listing or quotation the Shares
from any securities exchange upon which they are listed for trading or included or designated for quotation, or of the threatening or
initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will
use its reasonable best efforts to obtain the lifting of such order as soon as practicable. Additionally, the Company agrees that it shall
comply with all applicable provisions of Rule 424(b), Rule 433 and Rule 430A under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company under Rule 424(b) or Rule 433 were received in a timely
manner by the Commission.
(g) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser,
not misleading, or if in the opinion of the Representatives or counsel for the Underwriters it is otherwise necessary to amend or supplement
the Prospectus to comply with applicable law, the Company agrees (subject to Section 3(b) and Section 3(c) hereof)
to promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, amendments
or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule) to a purchaser, not misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. Neither the
Representatives’ consent to, nor delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s
obligations under Section 3(b) or Section 3(c).
(h) Blue
Sky Compliance. The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the
Offered Shares for sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial
securities laws (or other foreign laws) of those jurisdictions as may be reasonably designated by the Representatives, shall use reasonable
efforts to comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for
the distribution of the Offered Shares. The Company shall not be required to qualify as a foreign corporation or to take any action that
would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject
to taxation as a foreign corporation. The Company will advise the Representatives promptly of the suspension of the qualification or registration
of (or any such exemption relating to) the Offered Shares for offering, sale or trading in any jurisdiction or, if the Company gains knowledge
of such proceeding, any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending
such qualification, registration or exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof as promptly
as possible.
(i) Use
of Proceeds. The Company shall apply the net proceeds from the sale of the Offered Shares sold by it in all material respects
in the manner described under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and
the Prospectus.
(j) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(k) Earnings
Statement. The Company will make generally available to its security holders and to the Representatives as soon as practicable
an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter
of the Company commencing after the date of this Agreement that will satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
(l) Continued
Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion
of the distribution of the Offered Shares as contemplated by this Agreement, the Registration Statement, the Time of Sale Prospectus and
the Prospectus. Without limiting the generality of the foregoing, the Company will, during the period when a prospectus relating to the
Offered Shares is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the
Securities Act or any similar rule), file on a timely basis with the Commission and Nasdaq all reports and documents required to be filed
under the Exchange Act. Additionally, the Company shall report the use of proceeds from the issuance of the Offered Shares as may be required
under Rule 463 under the Securities Act.
(m) Listing.
The Company will use its reasonable best efforts to list, subject to notice of issuance, the Offered Shares on Nasdaq.
(n) Directed
Share Program. In connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted
to the extent required by FINRA or its rules from sale, transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement. Jefferies will notify the Company as to which Participants will
need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such
period of time. Should the Company release, or seek to release, from such restrictions any of the Directed Shares, the Company agrees
to reimburse the Underwriters for any reasonable expenses (including, without limitation, legal expenses) they incur in connection with
such release.
(o) Company
to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet. If requested by the Representatives,
the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement,
to the Representatives an “electronic Prospectus” to be used by the Underwriters in connection with the offering and
sale of the Offered Shares. As used herein, the term “electronic Prospectus” means a form of the Prospectus, and any
amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory
to the Representatives, that may be transmitted electronically by the Representatives and the other Underwriters to offerees and purchasers
of the Offered Shares; (ii) it shall disclose the same information as the paper Prospectus, except to the extent that graphic and
image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic
Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it
shall be in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow investors
to store and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged
for subscription to the Internet as a whole and for on-line time).
(p) Agreement
Not to Offer or Sell Additional Shares. During the period commencing on and including the date hereof and continuing through and
including the 180th day following the date of the Prospectus (such period, as extended as described below, being referred to herein as
the “Lock-up Period”), the Company will not, without the prior written consent of Jefferies and Cowen (which consent
may be withheld in their sole discretion), directly or indirectly: (i) sell, offer to sell, contract to sell or lend any Shares or
Related Securities (as defined below); (ii) effect any short sale, or establish or increase any “put equivalent position”
(as defined in Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any “call equivalent position” (as
defined in Rule 16a-1(b) under the Exchange Act) of any Shares or Related Securities; (iii) pledge, hypothecate or grant
any security interest in any Shares or Related Securities; (iv) in any other way transfer or dispose of any Shares or Related Securities;
(v) enter into any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership
of any Shares or Related Securities, regardless of whether any such transaction is to be settled in securities, in cash or otherwise;
(vi) announce the offering of any Shares or Related Securities; (vii) submit or file any registration statement under the Securities
Act in respect of any Shares or Related Securities (other than as contemplated by this Agreement with respect to the Offered Shares);
(viii) effect a reverse stock split, recapitalization, share consolidation, reclassification or similar transaction affecting the
outstanding Shares; or (ix) publicly announce the intention to do any of the foregoing; provided, however, that the Company
may (A) effect the transactions contemplated hereby; (B) issue or grant Shares or options to purchase Shares or other awards
or Related Securities, or issue Shares upon exercise of options, pursuant to any stock option, stock bonus or other stock plan or arrangement
described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, but only if the holders of such Shares or options
agree in writing with the Underwriters not to sell, offer, dispose of or otherwise transfer any such Shares or options during such Lock-up
Period without the prior written consent of Jefferies and Cowen (which consent may be withheld in their sole discretion); (C) issue
Shares in connection with the acquisition or license by the Company of the securities, business, property, technology or other assets
of another person or business entity or pursuant to any employee benefit plan assumed by the Company in connection with any such merger
or acquisition; (D) issue Shares or Related Securities in connection with any merger, joint venture, strategic alliances, commercial
relationship or other strategic or collaborative transactions; provided that, in the case of immediately preceding clauses (C) and
(D), (x) the aggregate number of Shares issued or underlying such Related Securities issued in connection with all such acquisitions
and other transactions does not exceed 7.5% of the aggregate number of Shares outstanding immediately following the consummation of the
offering of the Offered Shares pursuant to this Agreement and (y) the recipients of the Shares or Related Securities agree in writing
to be bound by the same terms described in the Lock-up Agreement; (E) issue or transfer Shares in connection with the Corporation
Reorganization; or (F) effect the conversion or reclassification of a class or series of common stock of the Company to another class
or series of common stock (including the conversion of shares of non-voting common stock into shares of voting common stock and vice versa),
provided, that in the case of the immediately preceding clauses (E) and (F), the recipients of the Shares agree in writing
to be bound by the same terms described in the Lock-up Agreement. For purposes of the foregoing, “Related Securities”
shall mean any options or warrants or other rights to acquire Shares or any securities exchangeable or exercisable for or convertible
into Shares, or to acquire other securities or rights ultimately exchangeable or exercisable for, or convertible into, Shares.
(q) Future
Reports to the Representatives. During the period of five years hereafter, the Company will furnish to the Representatives, c/o
Jefferies LLC, at 520 Madison Avenue, New York, New York 10022, Attention: Global Head of Syndicate, c/o Cowen and Company, LLC, at 599
Lexington Avenue, New York, New York 10022, Attention: Head of Equity Capital Markets, with a copy to the General Counsel, Investment
Banking; c/o Stifel, Nicolaus & Company, Incorporated, at 787 7th Avenue, 11th Floor, New York, New York 10019, Attention:
Equity Capital Markets; and c/o Guggenheim Securities, LLC, at 330 Madison Avenue, New York, New York 10017, Fax: (212) 658-9689, Attention:
Head of Equity Capital Markets (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company
containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders’ equity and
cash flows for the year then ended and the opinion thereon of the Company’s independent public or certified public accountants;
(ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, FINRA or any securities
exchange; and (iii) as soon as available, copies of any report or communication of the Company furnished or made available generally
to holders of its capital stock; provided, however, that the requirements of this Section 3(q) shall be satisfied to
the extent that such reports, statement, communications, financial statements or other documents are available on EDGAR.
(r) Investment
Limitation. The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Offered Shares
in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company
Act.
(s) No
Stabilization or Manipulation; Compliance with Regulation M. The Company will not take, and will ensure that no affiliate of the
Company will take, directly or indirectly, without giving effect to activities by the Underwriters, any action designed to or that would
reasonably be expected to cause or result in stabilization or manipulation of the price of the Shares or any reference security with respect
to the Shares, whether to facilitate the sale or resale of the Offered Shares or otherwise, and the Company will, and shall cause each
of its affiliates to, comply with all applicable provisions of Regulation M.
(t) Enforce
Lock-Up Agreements. During the Lock-up Period, the Company will enforce all agreements between the Company and any of its securityholders
that restrict or prohibit, expressly or in operation, the offer, sale or transfer of Shares or Related Securities or any of the other
actions restricted or prohibited under the terms of the form of Lock-up Agreement. In addition, the Company will direct the transfer agent
to place stop transfer restrictions upon any such securities of the Company that are bound by such “lock-up” agreements for
the duration of the periods contemplated in such agreements, including, without limitation, “lock-up” agreements entered into
by the Company’s officers, directors and securityholders pursuant to Section 6(i) hereof.
(u) Company
to Provide Interim Financial Statements. Prior to the First Closing Date and each applicable Option Closing Date, the Company
will furnish the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing
in the Registration Statement and the Prospectus; provided that the requirements of this Section 3(u) shall be deemed
satisfied to the extent such financial statements are available on EDGAR.
(v) Amendments
and Supplements to Permitted Section 5(d) Communications. If at any time following the distribution of any Permitted
Section 5(d) Communication, there occurred or occurs an event or development as a result of which such Permitted Section 5(d) Communication
included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will
promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Permitted Section 5(d) Communication
to eliminate or correct such untrue statement or omission.
(w) 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) the time when a prospectus relating to the Offered Shares is not required by the Securities
Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (ii) the
expiration of the Lock-up Period (as defined herein).
(x) Announcement
Regarding Lock-ups. The Company agrees to announce the Representatives’ intention to release any director or “officer”
(within the meaning of Rule 16a-1(f) under the Exchange Act) of the Company from any of the restrictions imposed by any Lock-up
Agreement, by issuing, through a major news service, a press release in form and substance satisfactory to the Representatives or, if
consented to by the Representatives, in a registration statement that is publicly filed in connection with a secondary offering of the
Company’s shares promptly following the Company’s receipt of any notification from the Representatives in which such intention
is indicated, but in any case not later than the close of the third business day prior to the date on which such release or waiver is
to become effective; provided, however, that nothing shall prevent the Representatives, on behalf of the Underwriters,
from announcing the same through a major news services, irrespective of whether the Company has made the required announcement (provided
that the Representatives will not make such announcement prior to announcement by the Company unless and until it must do so in order
to comply with applicable rules or laws); and provided, further, that no such announcement shall be made of any release or
waiver granted solely to permit a transfer of securities that is not for consideration and where the transferee has agreed in writing
to be bound by the terms of a Lock-up Agreement in the form set forth as Exhibit A hereto.
(y) 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.
Section 4. Payment
of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to
the issuance and delivery of the Offered Shares (including all printing and engraving costs), (ii) all fees and expenses of the registrar
and transfer agent of the Shares, (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale
of the Offered Shares to the Underwriters, (iv) all fees and expenses of the Company’s counsel, independent public or certified
public accountants and other advisors, (v) all costs and expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates
of experts), the Time of Sale Prospectus, the Prospectus, each free writing prospectus prepared by or on behalf of, used by, or referred
to by the Company, and each preliminary prospectus, each Permitted Section 5(d) Communication, and all amendments and supplements
thereto, and this Agreement, (vi) all filing fees, attorneys’ fees and expenses incurred by the Company or documented attorney’s
fees and out-of-pocket expenses incurred by the Underwriters in connection with qualifying or registering (or obtaining exemptions from
the qualification or registration of) all or any part of the Offered Shares for offer and sale under the state securities or blue sky
laws or the provincial securities laws of Canada, and, if requested by the Representatives, preparing and printing a “Blue Sky Survey”
or memorandum and a “Canadian wrapper,” and any supplements thereto, advising the Underwriters of such qualifications, registrations
and exemptions, (vii) the costs, fees and expenses incurred by the Underwriters in connection with determining their compliance with
the rules and regulations of FINRA related to the Underwriters’ participation in the offering and distribution of the Offered
Shares, including any related filing fees and the legal fees of, and disbursements by, counsel to the Underwriters, provided that
the fees and expenses under the subsection (vi) above and this subsection (vii) shall not exceed $40,000 in the aggregate, (viii) the
costs and expenses of the Company relating to investor presentations on any “road show”, any Permitted Section 5(d) Communication
or any Section 5(d) Oral Communication undertaken in connection with the offering of the Offered Shares, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the representatives, employees and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road show, provided, however, that the Underwriters
and the Company agree that the Underwriters shall be responsible for the payment of the Underwriters’ food and lodging expenses
and that the cost of any such chartered aircraft shall be borne 50% by the Company and 50% by the Underwriters, (ix) the fees and
expenses associated with listing the Offered Shares on Nasdaq, (x) all other fees, costs and expenses of the nature referred to in
Item 13 of Part II of the Registration Statement, and (xi) all costs and expenses of the Underwriters, including the fees and
disbursements of counsel for the Underwriters in connection with the matters related to the Directed Share Program which are designated
by the Company for sale to Participants. Except as provided in this Section 4 or in Section 7, Section 9 or Section 10
hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Offered Shares by them and any advertising expenses connected with any offers they may make and lodging expenses
incurred by them in connection with any road show, as applicable.
Section 5. Covenant
of the Underwriters. Each Underwriter severally and not jointly covenants with the Company not to take any action that would result
in the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of such Underwriter that otherwise would not, but for such actions, be required to be filed by the Company under
Rule 433(d).
Section 6. Conditions
of the Obligations of the Underwriters. The respective obligations of the several Underwriters hereunder to purchase and pay for
the Offered Shares as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall
be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the
date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as of each Option Closing Date
as though then made, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following
additional conditions:
(a) Comfort
Letter. On the date hereof, the Representatives shall have received from Ernst & Young LLP, independent registered public
accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives,
containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters,
delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited
financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus, and each
free writing prospectus, if any.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from FINRA. For the period from and after the date of this Agreement
and through and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each
Option Closing Date:
(i) The
Company shall have filed the Prospectus with the Commission (including the information required by Rule 430A under the Securities
Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed
a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective
amendment shall have become effective.
(ii) No
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall
be in effect, and no proceedings for such purpose shall have been instituted or threatened by the Commission.
(iii) FINRA
shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(c) No
Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and through and including
the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each Option Closing Date:
(i) in
the judgment of the Representatives there shall not have occurred any Material Adverse Change; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company
or any of its subsidiaries by any “nationally recognized statistical rating organization” as that term is used in Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act.
(d) Opinion
and Negative Assurance Letter of Counsel for the Company. On each of the First Closing Date and each Option Closing Date, the
Representatives shall have received the opinion, and negative assurance letter of Gibson, Dunn & Crutcher LLP, counsel for the
Company, in form and substance satisfactory to the Representatives, dated as of such date.
(e) Opinion
of Intellectual Property Counsel for the Company. On each of the First Closing Date and each Option Closing Date, the Representatives
shall have received the opinion and negative assurance letter of Goodwin Procter LLP, intellectual property counsel for the Company, in
form and substance satisfactory to the Representatives, dated as of such date.
(f) Opinion
and Negative Assurance Letter of Counsel for the Underwriters. On each of the First Closing Date and each Option Closing Date,
the Representatives shall have received the opinion and negative assurance letter of Cooley LLP, counsel for the Underwriters in connection
with the offer and sale of the Offered Shares, in form and substance satisfactory to the Representatives, dated as of such date.
(g) Officers’
Certificate. On each of the First Closing Date and each Option Closing Date, the Representatives shall have received a certificate
executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company, dated as of such date,
to the effect set forth in Section 6(b)(ii) and further to the effect that:
(i) for
the period from and including the date of this Agreement through and including such date, there has not occurred any Material Adverse
Change;
(ii) the
representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with the same
force and effect as though expressly made on and as of such date; and
(iii) the
Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder
at or prior to such date.
(h) Bring-down
Comfort Letters. On each of the First Closing Date and each Option Closing Date, the Representatives shall have received from
Ernst & Young LLP, independent registered public accountants for the Company, a letter dated such date, in form and substance
satisfactory to the Representatives, which letter shall: (i) reaffirm the statements made in the letter furnished by them pursuant
to Section 6(a), except that the specified date referred to therein for the carrying out of procedures shall be no more than three
business days prior to the First Closing Date or the applicable Option Closing Date, as the case may be; and (ii) cover certain financial
information contained in the Prospectus.
(i) Lock-Up
Agreements. On or prior to the date hereof, the Company shall have furnished to the Representatives an agreement in the form of
Exhibit A hereto from each director, officer and [substantially] all securityholders of the Company, and each such agreement
shall be in full force and effect on each of the First Closing Date and each Option Closing Date.
(j) Rule 462(b) Registration
Statement. In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated
by this Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission on the date of this Agreement
and shall have become effective automatically upon such filing.
(k) Approval
of Listing. At the First Closing Date, the Offered Shares shall have been approved for listing on Nasdaq, subject only to official
notice of issuance.
(l) [CFO
Certificate. On the date of this Agreement and on the First Closing Date or the applicable Option Closing Date, as the case may
be, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed
to the Underwriters, of its Chief Financial Officer with respect to certain financial data contained in the Time of Sale Prospectus and
the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory
to the Representatives.]
(m) Additional
Documents. On or before each of the First Closing Date and each Option Closing Date, the Representatives and counsel for the Underwriters
shall have received such information, documents and opinions as they may reasonably request for the purposes of enabling them to pass
upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Offered Shares as contemplated herein and in connection with the other transactions contemplated
by this Agreement shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(n) Corporate
Reorganization. All transactions required to give effect to the Corporate Reorganization shall have been consummated.
If any condition specified in this Section 6
is not satisfied when and as required to be satisfied (unless waived in writing by the Representatives), this Agreement may be terminated
by the Representatives by notice from the Representatives to the Company at any time on or prior to the First Closing Date and, with respect
to the Optional Shares, at any time on or prior to the applicable Option Closing Date, which termination shall be without liability on
the part of any party to any other party, except that Section 4, Section 7, Section 9 and Section 10 shall at all
times be effective and shall survive such termination.
Section 7. Reimbursement
of Underwriters’ Expenses. If this Agreement is terminated by the Representatives pursuant to Section 6, Section 11
or Section 12, or if the sale to the Underwriters of the Offered Shares on the First Closing Date is not consummated because of any
refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company
agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with respect
to themselves), severally, upon demand for all documented out-of-pocket expenses that shall have been reasonably incurred by the Representatives
and the Underwriters in connection with the proposed purchase and the offering and sale of the Offered Shares, including, but not limited
to, documented fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges. For the
avoidance of doubt, it is understood that the Company will not pay or reimburse any costs, fees or expenses incurred by any Underwriter
that defaults on its obligations to purchase the Offered Shares.
Section 8. Effectiveness
of this Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Section 9. Indemnification.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers,
employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange Act
against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such affiliate, director, officer, employee,
agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation,
or the laws or regulations of foreign jurisdictions where Offered Shares have been offered or sold or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (A) (i) any
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or
the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus,
the Time of Sale Prospectus, any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant
to Rule 433(d) of the Securities Act, any Marketing Material, any Section 5(d) Written Communication or the Prospectus
(or any amendment or supplement to the foregoing) or any prospectus wrapper material distributed in connection with the reservation and
sale of Directed Shares to the Participants, or the omission or alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) any act or failure
to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or
based upon any matter covered by clause (i) or (ii) above, or (B) the violation of any laws or regulations of foreign jurisdictions
where Offered Shares have been offered or sold; and to reimburse each Underwriter and each such affiliate, director, officer, employee,
agent and controlling person for any and all reasonable expenses (including the fees and disbursements of counsel) as such expenses are
incurred by such Underwriter or such affiliate, director, officer, employee, agent or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that
the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company by the Representatives in writing expressly for use
in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any such free writing prospectus, any Marketing
Material, any Section 5(d) Written Communication or the Prospectus (or any amendment or supplement thereto), it being understood
and agreed that the only such information consists of the information described in Section 9(b) below. The indemnity agreement
set forth in this Section 9(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred,
to which the Company, or any such director, officer, or controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation,
if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, or any amendment thereto, or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement
or alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus,
that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433 of the Securities Act, any Section 5(d) Written
Communication or the Prospectus (or any such amendment or supplement) or the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, such preliminary prospectus, the Time of Sale Prospectus, such free writing prospectus, such Section 5(d) Written
Communication or the Prospectus (or any such amendment or supplement), in reliance upon and in conformity with information relating to
such Underwriter furnished to the Company by the Representatives in writing expressly for use therein; and to reimburse the Company or
any such director, officer, or controlling person for any and all reasonable expenses (including the fees and disbursements of counsel)
as such expenses are incurred by the Company or any such director, officer, or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. The Company hereby acknowledges that the
only information that the Representatives have furnished to the Company expressly for use in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) of
the Securities Act, any Section 5(d) Written Communication or the Prospectus (or any amendment or supplement to the foregoing)
are the statements set forth in paragraphs [ ] under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus
(the “Underwriter Information”). The indemnity agreement set forth in this Section 9(b) shall be in addition to
any liabilities that each Underwriter may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under
this Section 9, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying
party will not relieve the indemnifying party from any liability which it may have to any indemnified party to the extent the indemnifying
party is not materially prejudiced as a proximate result of such failure and shall not in any event relieve the indemnifying party from
any liability that it may have otherwise than on account of this indemnity agreement. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded based upon advice
of counsel that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense
of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of such indemnifying party’s election to so assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under
this Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel
(together with local counsel), representing the indemnified parties who are parties to such action), which counsel (together with any
local counsel) for the indemnified parties shall be selected by the Representatives (in the case of counsel for the indemnified parties
referred to in Section 9(a) above) or by the Company (in the case of counsel for the indemnified parties referred to in Section 9(b) above))
or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of the indemnifying party, in each of which cases the fees
and expenses of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 9 shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 9(c) hereof, the indemnifying party shall be liable for any settlement
of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit
or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder
by such indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or proceeding and does not include an admission of fault or culpability
or a failure to act by or on behalf of such indemnified party.
(e) Indemnification
for Directed Shares. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request
in writing, to indemnify and hold harmless the Underwriters from and against any and all losses, liabilities, claims, damages and expenses
incurred by any of them as a result of the failure of the Participants to pay for and accept delivery of Directed Shares which, by the
end of the first business day following the date of this Agreement, were subject to a properly confirmed agreement to purchase. The Company
agrees to indemnify and hold harmless the Underwriters and their respective affiliates, directors, officers, employees and agents, and
each person, if any, who controls any of the Underwriters within the meaning of the Securities Act or the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which the Underwriters or such controlling person may become subject, insofar as
such loss, claim, damage, liability or expense is (i) caused by any untrue statement or alleged untrue statement of a material fact
contained in any material prepared by or with the consent of the Company for distribution to Participants in connection with the Directed
Share Program (including any prospectus wrapper material distributed in connection with the reservation and sale of Directed Shares) or
caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, except to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus, any Section 5(d) Written
Communication or the Prospectus (or any such amendment or supplement), in reliance upon and in conformity with information relating to
such Underwriter furnished to the Company by the Representatives in writing expressly for use therein, it being understood that the only
such information is the Underwriter Information; (ii) caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that such Participant agreed to purchase; or (iii) related to, arising out of, or in connection with the Directed
Share Program,. The indemnity agreement set forth in this Section 9(e) shall be in addition to any liabilities that the Company
may otherwise have.
Section 10. Contribution.
If the indemnification provided for in Section 9 is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims,
damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Offered Shares pursuant to this Agreement
or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Offered Shares pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total proceeds from the offering of the Offered Shares pursuant to this
Agreement (before deducting expenses) received by the Company, and the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the
Offered Shares as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission.
The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set
forth in Section 9(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 9(c) with respect to notice of commencement of any action
shall apply if a claim for contribution is to be made under this Section 10; provided, however, that no additional notice
shall be required with respect to any action for which notice has been given under Section 9(c) for purposes of indemnification.
The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations
referred to in this Section 10.
Notwithstanding
the provisions of this Section 10, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts
and commissions received by such Underwriter in connection with the Offered Shares underwritten by it and distributed to the public. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Section 10 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite
their respective names on Schedule A. For purposes of this Section 10, each affiliate, director, officer, employee
and agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as the Company.
Section 11. Default
of One or More of the Several Underwriters. If, on the First Closing Date or any Option Closing Date any one or more of the several
Underwriters shall fail or refuse to purchase Offered Shares that it or they have agreed to purchase hereunder on such date, and the aggregate
number of Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10%
of the aggregate number of the Offered Shares to be purchased on such date, the Representatives may make arrangements satisfactory to
the Company for the purchase of such Offered Shares by other persons, including any of the Underwriters, but if no such arrangements are
made by such date, the other Underwriters shall be obligated, severally and not jointly, in the proportions that the number of Firm Shares
set forth opposite their respective names on Schedule A bears to the aggregate number of Firm Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase the Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date. If, on the First Closing Date or any Option Closing Date any one or more of the Underwriters shall fail or refuse to purchase
Offered Shares and the aggregate number of Offered Shares with respect to which such default occurs exceeds 10% of the aggregate number
of Offered Shares to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase
of such Offered Shares are not made within 48 hours after such default, this Agreement shall terminate without liability of any party
(other than the breaching Underwriter or Underwriters) to any other party except that the provisions of Section 4, Section 7,
Section 9 and Section 10 shall at all times be effective and shall survive such termination. In any such case either the Representatives
or the Company shall have the right to postpone the First Closing Date or the applicable Option Closing Date, as the case may be, but
in no event for longer than seven days in order that the required changes, if any, to the Registration Statement and the Prospectus or
any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter”
shall be deemed to include any person substituted for a defaulting Underwriter under this Section 11. Any action taken under this
Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Section 12. Termination
of this Agreement. Prior to the purchase of the Firm Shares by the Underwriters on the First Closing Date, this Agreement may
be terminated by the Representatives by notice given to the Company if at any time: (i) trading or quotation in any of the Company’s
securities shall have been suspended or limited by the Commission or by Nasdaq, or trading in securities generally on either Nasdaq or
the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established
on any of such stock exchanges; (ii) a general banking moratorium shall have been declared by any federal, New York or California
authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States or international financial markets, or any substantial change or development involving a
prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment
of the Representatives is material and adverse and makes it impracticable to market the Offered Shares in the manner and on the terms
described in the Time of Sale Prospectus or the Prospectus or to enforce contracts for the sale of securities; (iv) in the reasonable
judgment of the Representatives there shall have occurred any Material Adverse Change; or (v) the Company shall have sustained a
loss by strike, fire, flood, earthquake, accident or other calamity of such character as in the judgment of the Representatives may interfere
materially with the conduct of the business and operations of the Company regardless of whether or not such loss shall have been insured.
Any termination pursuant to this Section 12 shall be without liability on the part of (a) the Company to any Underwriter, except
that the Company shall be obligated to reimburse the expenses of the Representatives and the Underwriters pursuant to Section 4
or Section 7 hereof or (b) any Underwriter to the Company; provided, however, that the provisions of Section 9
and Section 10 shall at all times be effective and shall survive such termination.
Section 13. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Offered Shares
pursuant to this Agreement, including the determination of the public offering price of the Offered Shares and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, and does not constitute a recommendation, investment advice, or solicitation of any action by the Underwriters, (b) in
connection with the offering contemplated hereby and the process leading to such transaction, each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the
offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising
the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except
the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Company, (e) the Underwriters have not provided any legal,
accounting, regulatory, investment or tax advice with respect to the offering contemplated hereby and each of the Company has consulted
its own 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 transaction contemplated herein constitutes a recommendation, investment advice, or solicitation of
any action by the Underwriters with respect to any entity or natural person.
Section 14. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements
of the Company, of its officers, and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of its or their partners, officers
or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery
of and payment for the Offered Shares sold hereunder and any termination of this Agreement.
Section 15. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto
as follows:
| |
If to the Representatives: |
Jefferies
LLC |
|
| |
|
520 Madison Avenue |
|
| |
|
New York, New York 10022 |
|
| |
|
Facsimile: (646) 619-4437 |
|
| |
|
Attention: General Counsel |
|
| |
|
|
|
| |
|
Cowen
and Company, LLC |
|
| |
|
599 Lexington Avenue |
|
| |
|
New
York, New York 10022 |
|
| |
|
Facsimile:
(646) 562-1124 |
|
| |
|
Attention:
General Counsel |
|
| |
|
|
|
| |
|
Stifel,
Nicolaus & Company, Incorporated |
|
| |
|
787
7th Avenue, 11th Floor |
|
| |
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New
York, New York 10019 |
|
| |
|
Attention:
Equity Capital Markets |
|
| |
|
|
|
| |
|
Guggenheim
Securities, LLC |
|
| |
|
330
Madison Avenue |
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| |
|
New
York, New York 10017 |
|
| |
|
Attention:
Head of Equity Capital Markets |
|
| |
|
|
|
| |
with a copy to: |
Cooley LLP |
|
| |
|
55 Hudson
Yards |
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New York, NY 10001 |
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| |
|
Facsimile: (212) 479-6275 |
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| |
|
Attention:
Div Gupta |
|
| |
|
|
|
| |
If to the Company: |
Apogee Therapeutics, Inc. |
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221 Crescent Street |
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| |
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Waltham, MA 02453 |
|
| |
|
Attention: Jane Pritchett Henderson |
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| |
|
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|
| |
with a copy to: |
Gibson, Dunn & Crutcher
LLP |
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555 Mission Street, Suite 3000 |
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San Francisco, CA 94105 |
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| |
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Facsimile: (415) 393-8306 |
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| |
|
Attention: Ryan Murr |
|
Any party hereto may change the address for receipt
of communications by giving written notice to the others.
Section 16. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to
Section 11 hereof, and to the benefit of the affiliates, directors, officers, employees, agents and controlling persons referred
to in Section 9 and Section 10, and in each case their respective successors, and personal representatives, and no other person
will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Offered Shares as
such from any of the Underwriters merely by reason of such purchase.
Section 17. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
Section 18. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For purposes of this Agreement, (A) “BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with,
12 U.S.C. § 1841(k); (B) “Covered Entity” means any of the following: (i) a “covered entity”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the
meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable;
and (D) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated
thereunder.
Section 19. Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of
the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each
case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each party
irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any
such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall
be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally
waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been
brought in an inconvenient forum.
With respect to any Related Proceeding, each party
irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise)
from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled
in the Specified Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any
other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such
Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities
Act of 1976, as amended.
Section 20. Waiver
of Jury Trial. Each of the Company and the Representatives hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trail in any legal proceeding arising out of or relating to this Agreement or the transaction contemplated hereby.
Section 21. General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written
or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement
may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were
an original thereof. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S.
federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g.,
www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered
and be valid and effective for all purposes. This Agreement may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit;
provided that the Representatives acting alone have the authority to waive the conditions set forth in Section 6. The section
headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it
is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 9 and the contribution provisions of Section 10, and is fully
informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 9 and Section 10
hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order
to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
each free writing prospectus and the Prospectus (and any amendments and supplements to the foregoing), as contemplated by the Securities
Act and the Exchange Act.
[Signature pages follow]
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall
become a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
APOGEE THERAPEUTICS, INC. |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Title: |
The foregoing Underwriting Agreement is hereby
confirmed and accepted by the Representatives in New York, New York as of the date first above written.
JEFFERIES
LLC
cowen and company, llc
STIFEL, NICOLAUS &
COMPANY, INCORPORATED
guggenheim securities,
llc
Acting individually and as Representatives
of the several Underwriters named in
the
attached Schedule A.
JEFFERIES
LLC
| By: |
|
|
| |
Name: |
|
| |
Title: |
|
| |
|
| Cowen
and company, llc |
|
| |
|
| By: |
|
|
| |
Name: |
|
| |
Title: |
|
| |
|
| STIFEL,
NICOLAUS & COMPANY, INCORPORATED |
|
| |
|
| By: |
|
|
| |
Name: |
|
| |
Title: |
|
| |
|
| guggenheim
securities, llc |
|
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|
| By: |
|
|
| |
Name: |
|
| |
Title: |
|
[Signature Page to Underwriting Agreement]
Schedule A
| Underwriters | |
Number of
Firm Shares
to be Purchased | |
| Jefferies LLC | |
[●] | |
| Cowen and Company, LLC | |
[●] | |
| Stifel, Nicolaus & Company, Incorporated | |
[●] | |
| Guggenheim Securities, LLC | |
[●] | |
| Wedbush Securities Inc. | |
[●] | |
| Total | |
[●] | |
Schedule B
Free Writing Prospectuses Included in the
Time of Sale Prospectus
[●]
Pricing Information Included in the Time
of Sale Prospectus
| Price per share to the public: |
$ | [●] | |
| Number of shares being sold by the Company: |
| [●] | |
| Number of shares potentially issuable pursuant |
| | |
| to the option to purchase additional shares: |
| [●] | |
Schedule C
Permitted Section 5(d) Communications
[●]
Exhibit A
Form of Lock-up Agreement
| _______________,2023 |
|
| |
|
| Jefferies LLC |
|
| Cowen and Company, LLC |
|
| Stifel, Nicolaus & Company, Incorporated |
|
| Guggenheim Securities, LLC |
|
| As Representatives of the Several Underwriters |
|
| c/o Jefferies LLC |
|
| 520 Madison Avenue |
|
| New York, New York 10022 |
|
c/o Cowen and Company, LLC
599 Lexington Avenue
New York, New York 10022
c/o Stifel, Nicolaus & Company, Incorporated
787 7th Avenue, 11th Floor
New York, New York 10019
c/o Guggenheim Securities, LLC
330 Madison Avenue
New York, New York 10017
RE: Apogee Therapeutics, LLC –
Initial Public Offering
Ladies & Gentlemen:
The
undersigned is currently an owner of membership interests of Apogee Therapeutics, LLC, who will become an owner of shares of common stock
(“Shares”) or of securities convertible into or exchangeable or exercisable for Shares in Apogee Therapeutics, Inc.
(together with Apogee Therapeutics, LLC, the “Company”) as a result of a corporate reorganization effected prior to
the consummation of the transactions contemplated by the Underwriting Agreement (defined below). The Company proposes to conduct a public
offering of Shares (the “Offering”) for which Jefferies LLC (“Jefferies”), Cowen and Company,
LLC (“Cowen”), Stifel, Nicolaus & Company, Incorporated and Guggenheim Securities, LLC will act as the
representatives (collectively, the “Representatives”) of the underwriters. The undersigned recognizes that the Offering
will benefit each of the Company and the undersigned. The undersigned acknowledges that the underwriters are relying on the representations
and agreements of the undersigned contained in this letter agreement in conducting the Offering and, at a subsequent date, in entering
into an underwriting agreement (the “Underwriting Agreement”) and other underwriting arrangements with the Company
with respect to the Offering.
Annex A sets forth definitions for capitalized
terms used in this letter agreement that are not defined in the body of this letter agreement. Those definitions are a part of this letter
agreement.
In consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees that, during the Lock-up Period,
the undersigned will not (and, if the undersigned is a natural person, will cause any Family Member not to), subject to the exceptions
set forth in this letter agreement, without the prior written consent of Jefferies and Cowen, which may withhold their consent in their
sole discretion:
| ● | Sell or Offer to Sell any Shares or Related Securities currently or hereafter owned either of record or beneficially (as defined in
Rule 13d-3 under the Exchange Act) by the undersigned or such Family Member, |
| ● | make any demand for, or exercise any right with respect to, the registration under the Securities Act of the offer and sale of any
Shares or Related Securities, or cause to be filed a registration statement, prospectus or prospectus supplement (or an amendment or supplement
thereto) with respect to any such registration, or |
| ● | publicly announce any intention to do any of the foregoing. |
The foregoing restrictions will not apply to the registration of the
offer and sale of the Shares, and the sale of the Shares to the underwriters, in each case as contemplated by the Underwriting Agreement.
In addition, the foregoing restrictions shall not apply to the transfer of Shares or Related Securities:
| i. | by a bona fide gift, including, without limitation, to a charitable organization; |
| ii. | by will, other testamentary document or intestate succession; |
| iii. | by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, or
related court order related to the distribution of assets in connection with the dissolution of a marriage or civil union; |
| iv. | to a corporation, partnership, limited liability company or other entity of which the undersigned or any Family Member is the legal
and beneficial owner of all of the outstanding equity securities or similar interests; |
| v. | to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through
(iv) above; |
| vi. | to a trust whose beneficiaries consist exclusively of, or other entities formed for the direct or indirect benefit of, one or more
of the undersigned and/or a Family Member; |
| viii. | if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a beneficiary of such trust; |
| ix. | if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation,
partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under
the Securities Act) of the undersigned (including, for the avoidance of doubt, any wholly-owned direct or indirect subsidiary of the undersigned
or to the immediate or indirect parent entity of the undersigned), or to any investment fund or other entity controlling, controlled by,
managing or managed by or under common control with the undersigned (including, for the avoidance of doubt, where the undersigned is a
partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as
part of a distribution, transfer or other disposition by the undersigned to its stockholders, partners, members or other equity holders; |
| x. | if the undersigned is not an executive officer or director of the Company that the undersigned may purchase (A) from the underwriters
in the Offering or (B) in open market transactions after the completion of the Offering; |
| xi. | in connection with the exercise or settlement on a cash basis of options or restricted stock units or other rights to purchase Shares
or Related Securities described in the Registration Statement, provided that any Shares or Related Securities received as a result
of such exercise, vesting or settlement shall remain subject to the terms of this letter agreement; |
| xii. | to the Company (A) in connection with the “net” or “cashless” exercise of options, warrants or other
rights to purchase Shares or Related Securities from the Company (including any transfer to the Company for the payment of tax withholdings
or remittance payments due as a result of such exercise), and (B) in connection with the vesting or settlement of restricted stock
units or other rights to purchase Shares or Related Securities, for the payment of tax withholdings or remittance payments due as a result
of the vesting or settlement of such restricted stock units or other rights, in all such cases, pursuant to equity awards granted under
a stock incentive plan or other equity award plan, provided that any Shares or Related Securities received as a result of such
exercise, vesting or settlement shall remain subject to the terms of this letter agreement; |
| xiii. | pursuant to a bona fide third-party tender offer, merger, amalgamation, consolidation or other similar transaction that is
approved by the Board of Directors of the Company and made to all holders of the Company’s capital stock after the Offering involving
a Change of Control of the Company (including, without limitation, the entering into any lock-up, voting or similar agreement pursuant
to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Shares or other such securities in connection with
such transaction, or vote any Shares or other such securities in favor of any such transaction), provided that in the event that
such tender offer, merger, amalgamation, consolidation or other similar transaction is not completed, the undersigned’s Shares and
Related Securities shall remain subject to the provisions of this letter agreement; |
| xiv. | contributing, exchanging or transferring membership interests in Apogee Therapeutics, LLC for equity interests in Apogee Therapeutics, Inc.
as disclosed in the Registration Statement, it being understood that any such Shares and/or Related Securities received by the undersigned
in connection with such reorganization shall be subject to the restrictions on transfer set forth in this letter agreement; |
| xv. | in connection with the conversion or reclassification of a class or series of common stock of the Company to another class or series
of common stock (including the conversion of shares of non-voting common stock into shares of voting common stock and vice versa), it
being understood that any such Shares and/or Related Securities received by the undersigned upon such conversion shall be subject to the
restrictions on transfer set forth in this letter agreement; and |
| xvi. | in connection with (A) the termination of the undersigned’s employment with the Company, or (B) pursuant to agreements
under which the Company has the option to repurchase such Shares. |
provided,
however, that in any such case, it shall be a condition to such transfer that:
| ● | in the case of any transfer pursuant to clauses (i) through (vii) and (ix) above, each transferee executes and
delivers to the Representatives an agreement in the form and substance satisfactory to the Representatives stating that such transferee
is receiving and holding such Shares and/or Related Securities subject to the provisions of this letter agreement and agrees not to, during
the Lock-up Period, Sell or Offer to Sell such Shares and/or Related Securities, engage in any Swap or engage in any other activities
restricted under this letter agreement except in accordance with this letter agreement (as if such transferee had been an original signatory
hereto); |
| ● | in the case of any transfer pursuant to clauses (ii), (iv), (vi) through (viii) and (x) above, prior to the expiration
of the Lock-up Period, no public disclosure or filing under the Exchange Act by any party to the transfer (donor, donee, transferor or
transferee) shall be required, or made voluntarily, during the Lock-up Period, reporting a reduction in beneficial ownership of Shares
in connection with such transfer; |
| ● | in the case of any transfer pursuant to clauses (i), (iii), (v), (ix) and (xi) through (xvi) above, no public disclosure
or filing reporting a change in beneficial ownership of Shares or Related Securities shall be made voluntarily during the Lock-up Period,
and if the undersigned is required to file a report under Section 16 of the Exchange Act reporting a change in beneficial ownership
of Shares or Related Securities during the Lock-up Period, the undersigned shall include a statement in such report to the effect that
such transfer relates to the circumstances described in clause (i), (iii), (v), (ix), (xi), (xii), (xiii), (xiv), (xv) or (xvi) as
applicable; and |
| ● | in the case of any transfer pursuant to clauses (i) through (ix) above, such transfer shall not involve a disposition
for value. |
If the undersigned is an officer or director of
the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Shares the
undersigned may purchase or otherwise receive in the Offering (including pursuant to a directed share program).
Furthermore, notwithstanding the restrictions imposed by this letter
agreement, the undersigned may establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Shares
or Related Securities, provided that such plan does not provide for any transfers of Shares or Related Securities during the Lock-up
Period, provided, further, that no filing under the Exchange Act or other public announcement shall be required or shall
be made voluntarily in connection therewith during the Lock-up Period and any required public disclosure of such plan includes the restrictions
set forth in this letter agreement.
In
addition, if the undersigned is an officer or director of the Company, (i) Jefferies and Cowen agree that, at least three
business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Shares,
Jefferies and Cowen will notify the Company of the impending release or waiver, and (ii) the Company (in accordance with the provisions
of the Underwriting Agreement) will announce the impending release or waiver by press release through a major news service or, if consented
to by Jefferies and Cowen, in a registration statement that is publicly filed in connection with a secondary offering of Shares at least
two business days before the effective date of the release or waiver. Any release or waiver granted by Jefferies and Cowen hereunder to
any such officer or director shall only be effective two business days after the publication date of such press release or registration
statement. The provisions of this paragraph will not apply if both (a) the release or waiver is effected solely to permit a transfer
not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter agreement
that are applicable to the transferor to the extent and for the duration that such terms remain in effect at the time of the transfer.
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 Shares or Related Securities held by the undersigned
and, if the undersigned is a natural person, the undersigned’s Family Members, if any, except in compliance with the foregoing restrictions.
With
respect to the Offering only, the undersigned waives any registration rights relating to registration under the Securities Act
of the offer and sale of any Shares and/or any Related Securities owned either of record or beneficially by the undersigned, including
any rights to receive notice of the Offering.
The undersigned confirms that the undersigned has not, and has no knowledge
that any Family Member has, directly or indirectly, taken any action designed to or that might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares. The undersigned
will not, and will use best efforts to cause any Family Member not to take, directly or indirectly, any such action.
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 and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed
appropriate. The undersigned further acknowledges and agrees that, although the Representatives may be required or choose to provide certain
Regulation Best Interest and Form CRS disclosures to the undersigned in connection with the Offering, the Representatives and the
other underwriters are not making a recommendation to the undersigned to enter into this letter agreement and nothing set forth in such
disclosures is intended to suggest that the Representatives or any underwriter is making such a recommendation.
Whether or not the Offering occurs as currently contemplated or at
all depends on market conditions and other factors. The Offering will only be made pursuant to the Underwriting Agreement, the terms of
which are subject to negotiation between the Company and the underwriters. Notwithstanding anything to the contrary contained herein,
this letter agreement will automatically terminate and the undersigned shall be released from all obligations under this letter agreement
upon the earliest to occur, if any, of (i)(A) the Company advising the Representatives in writing prior to the execution of the Underwriting
Agreement that it has determined not to proceed with the Offering or (B) the Representatives notifying the Company in writing prior
to the execution of the Underwriting Agreement that the underwriters have determined not to proceed with the Offering, (ii) the Registration
Statement is withdrawn, (iii) the Underwriting Agreement is terminated following execution of the Underwriting Agreement (other than
the provisions thereof which survive termination) prior to payment for and delivery of the Shares to be sold thereunder or (iv) December 31,
2023 if the Underwriting Agreement has not been executed by such date; provided, however, that the Company may, by written notice
to the undersigned prior to such date, extend such date for a period of up to three additional months.
The
undersigned hereby represents and warrants that the undersigned has full power, capacity and authority to enter into this letter agreement.
This letter agreement is irrevocable and will be binding on the undersigned and the successors, heirs, personal representatives and assigns
of the undersigned. This letter 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.
This letter agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
[Signature page follows]
| Very truly yours, |
|
| |
|
| |
|
| Signature |
|
| |
|
| |
|
| Printed Name of Security Holder |
|
| |
|
| If not signing in an individual capacity: |
|
| |
|
| |
|
| Printed Name of Authorized Signatory |
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| Printed Title of Authorized Signatory |
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(Indicate capacity of person signing if
signing as custodian, trustee, or on behalf
of an entity) |
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Certain Defined Terms
Used in Lock-up Agreement
For purposes of the letter agreement to which this Annex A is attached
and of which it is made a part:
| ● | “Call Equivalent Position” shall have the meaning set forth in Rule 16a-1(b) under the Exchange Act. |
| ● | “Change of Control” means the consummation of any bona fide third party tender offer, merger, amalgamation, consolidation
or other similar transaction following the completion of the Offering and approved by the Board of Directors of the Company, the result
of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, other than
the Company or its subsidiaries, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than
50% of the total voting power of the voting stock of the Company. |
| ● | “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended. |
| ● | “Family Member” shall mean the spouse of the undersigned, an immediate family member of the undersigned or an immediate
family member of the undersigned’s spouse, in each case living in the undersigned’s household or whose principal residence
is the undersigned’s household (regardless of whether such spouse or family member may at the time be living elsewhere due to educational
activities, health care treatment, military service, temporary internship or employment or otherwise). “Immediate family member”
as used above shall have the meaning set forth in Rule 16a-1(e) under the Exchange Act. |
| ● | “Lock-up Period” shall mean the period beginning on the date hereof and continuing through the close of trading
on the date that is 180 days after the date of the Prospectus (as defined in the Underwriting Agreement). |
| ● | “Put Equivalent Position” shall have the meaning set forth in Rule 16a-1(h) under the Exchange Act. |
| ● | “Registration Statement” shall mean the registration statement on Form S-1 filed with the Securities and Exchange
Commission by the Company in connection with the Offering. |
| ● | “Related Securities” shall mean any options or warrants or other rights to acquire Shares or any securities exchangeable
or exercisable for or convertible into Shares, or to acquire other securities or rights ultimately exchangeable or exercisable for or
convertible into Shares. |
| ● | “Securities Act” shall mean the Securities Act of 1933, as amended. |
| ● | “Sell or Offer to Sell” shall mean to: |
| – | sell, offer to sell, contract to sell or lend, |
| – | effect any short sale or establish or increase a Put Equivalent Position or liquidate or decrease any Call Equivalent Position |
| – | pledge, hypothecate or grant any security interest in, or |
| – | in any other way transfer or dispose of, |
in each case whether effected directly
or indirectly.
| ● | “Swap” shall mean any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the
economic risk of ownership of Shares or Related Securities, regardless of whether any such transaction is to be settled in securities,
in cash or otherwise. |
Capitalized terms not defined in this Annex A shall have the meanings
given to them in the body of this lock-up agreement.
