Exhibit 10.1


 


ACLARIS
THERAPEUTICS, INC.

Shares of Common Stock

($0.00001 par value per share)


 


SALES AGREEMENT


 


May 20, 2021


 


SVB LEERINK LLC


1301 Avenue
of the Americas, 12th Floor


New York, New York 10019


 


Cantor Fitzgerald & Co.

499 Park Avenue

New York, New York 10022


 


Ladies and Gentlemen:


 


Aclaris
Therapeutics, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated
herein, to issue and sell from time to time through SVB Leerink LLC and Cantor Fitzgerald & Co., as sales agents and/or
principals (collectively the “Agents,” and each individually an “Agent”), shares of the Company’s
common stock, par value $0.00001 per share (the “Common Shares”), having an aggregate offering price of up to $150,000,000
on the terms set forth in this agreement (this “Agreement”).


 


Section 1. DEFINITIONS


 


(a)           Certain
Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following respective
meanings:


 


“Affiliate”
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, such first- mentioned Person. The term “control” (including the terms “controlling,” “controlled
by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.


 


“Agency Period”
means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date on which the Designated
Agent shall have placed the Maximum Program Amount pursuant to this Agreement and (y) the date this Agreement is terminated pursuant
to Section 7.


 


“Commission”
means the U.S. Securities and Exchange Commission.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.


 






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“Designated Agent”
means, as of any given time, an Agent that the Company has designated as sales agent to sell Shares pursuant to the terms of this Agreement.


 


“Issuance Amount”
means the aggregate Sales Price of the Shares to be sold by the Designated Agent pursuant to any Issuance Notice.


 


“Issuance Notice”
means a written notice delivered to the Designated Agent by the Company in accordance with this Agreement in the form attached hereto
as Exhibit A that is executed by its Chief Executive Officer, President or Chief Financial
Officer.


 


“Issuance Notice
Date” means any Trading Day during the Agency Period that an Issuance Notice is delivered
pursuant to Section 3(b)(i).


 


“Issuance Price”
means the Sales Price less the Selling Commission.


 


“Maximum Program
Amount” means Common Shares with an aggregate Sales Price of the lesser of (a) the number or dollar amount of Common Shares
registered under the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) the number
of authorized but unissued Common Shares (less Common Shares issuable upon exercise, conversion or exchange of any outstanding securities
of the Company or otherwise reserved from the Company’s authorized capital stock), (c) the number or dollar amount of Common
Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), or (d) the number or
dollar amount of Common Shares for which the Company has filed a Prospectus (defined below).


 


“Person”
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other entity of any kind.


 


“Principal Market”
means the Nasdaq Global Select Market or such other national securities exchange on which the Common Shares, including any Shares, are
then listed.


 


“Sales Price”
means the actual sale execution price of each Share placed by the Designated Agent pursuant to this Agreement.


 


“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.


 


“Selling Commission”
means three percent (3%) of the gross proceeds of Shares sold pursuant to this Agreement, or as otherwise agreed between the Company and
the Designated Agent with respect to any Shares sold pursuant to this Agreement.


 


“Settlement
Date” means the second business day following each Trading Day during the period set forth in the Issuance Notice on
which Shares are sold pursuant to this Agreement, when the Company shall deliver to the Designated Agent the amount of Shares sold on
such Trading Day and the Designated Agent shall deliver to the Company the Issuance Price received on such sales.


 






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“Shares”
shall mean the Company’s Common Shares issued or issuable pursuant to this Agreement.


 


“Trading Day”
means any day on which the Principal Market is open for trading.


 


Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


The Company represents and
warrants to, and agrees with, each Agent that as of (1) the date of this Agreement, (2) each Issuance Notice Date, (3) each
Settlement Date, (4) each Triggering Event Date and (5) as of each Time of Sale (each of the times referenced above is referred
to herein as a “Representation Date”), except as may be disclosed in the Prospectus (including any documents incorporated
by reference therein and any supplements thereto) on or before a Representation Date:


 


(a)           Registration
Statement. The Company has prepared and filed, or will file on the date of this Agreement, with the Commission a shelf registration
statement on Form S-3 that contains a base prospectus. Such registration statement registers the issuance and sale by the Company
of the Shares under the Securities Act. The Company may file one or more additional registration statements from time to time that will
contain a base prospectus and related prospectus or prospectus supplement, if applicable, with respect to the Shares. Except where the
context otherwise requires, such registration statement(s), including any information deemed to be a part thereof pursuant to Rule 430B
under the Securities Act, including all financial statements, exhibits and schedules thereto and all documents incorporated or deemed
to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act as from time to time amended or
supplemented, is herein referred to as the “Registration Statement,” and the prospectus constituting a part of such
registration statement(s), together with any prospectus supplement filed with the Commission pursuant to Rule 424(b) under
the Securities Act relating to a particular issuance of the Shares, including all documents incorporated or deemed to be incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each case, as from time to time amended or supplemented,
is referred to herein as the “Prospectus,” except that if any revised prospectus is provided to the Agents by the
Company for use in connection with the offering of the Shares that is not required to be filed by the Company pursuant to Rule 424(b) under
the Securities Act, the term “Prospectus” shall refer to such revised prospectus from and after the time it is first
provided to the Agents for such use. The Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.”


 


All
references in this Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in
or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement or the Prospectus, as the case
may be, as of any specified date; and all references in this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, the filing of any document under the Exchange Act which is or is deemed
to be incorporated by reference in or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement
or the Prospectus, as the case may be, as of any specified date. The Company’s obligations under this Agreement to furnish, provide,
deliver or make available (and all other references of like import) copies of any report or statement shall be deemed satisfied if the
same is filed with the Commission through its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”)
(except that, upon the Agents’ request, the Company shall provide a signed and printed copy of the Registration Statement and of
any signed amendment or supplement thereto).


 






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At the time the Registration
Statement was or will be originally declared effective and at the time the Company’s most recent annual report on Form 10-K
was filed with the Commission, if later, the Company met the then-applicable requirements for use of Form S-3 under the Securities
Act. During the Agency Period, each time the Company files an annual report on Form 10-K the Company will meet the then-applicable
requirements for use of Form S-3 under the Securities Act.


 


(b)           Compliance
with Registration Requirements. The Original Registration Statement will be automatically 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.
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 knowledge of the Company, contemplated or threatened by the Commission.


 


The Prospectus will comply
or, when filed, complied, as applicable, in all material respects with the Securities Act and, if filed with the Commission through EDGAR
(except as may be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof delivered to the Agents
for use in connection with the issuance and sale of the Shares. Each of the Registration Statement and any post-effective amendment thereto,
at the time it became effective and at all subsequent times, 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 date of this Agreement, the Prospectus and any Free Writing Prospectus
(as defined below) considered together (collectively, the “Time of Sale Information”) did not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Prospectus, as amended or supplemented, as of its date and at all subsequent times, did not
and 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 any amendments or supplements thereto, made in reliance upon and in conformity with information
relating to the Agents furnished to the Company in writing by the Agents expressly for use therein, it being understood and agreed that
the only such information furnished by the Agents to the Company consists of the information described in Section 6 below.
There are no contracts or other documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement
which have not been described or filed as required. The Registration Statement and the offer and sale of the Shares as contemplated hereby
meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said rule.


 






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(c)           Ineligible
Issuer Status. The Company is not an “ineligible issuer” in connection with the offering of the Shares pursuant to Rules 164,
405 and 433 under the Securities Act. Any 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 behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements
of Rule 433 under the Securities Act including timely filing with the Commission or retention where required and legending, and
each such Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the issuance and sale of
the Shares did not, does not and will not include any information that conflicted, conflicts with or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein. Except for the Free
Writing Prospectuses, if any, and electronic road shows, if any, furnished to the Agents before first use, the Company has not prepared,
used or referred to, and will not, without the Agents’ prior consent, prepare, use or refer to, any Free Writing Prospectus.


 


(d)           Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act, as applicable,
and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.


 


(e)           Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, and any Free Writing Prospectus or amendment or supplement thereto complied and will comply
in all material respects with the requirements of the Exchange Act, and, when read together with the other information in the Prospectus,
at the time the Registration Statement and any amendments thereto become effective and at each Time of Sale (as defined below), as the
case may be, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.


 


(f)            Statistical
and Market-Related Data. The statistical, demographic and market-related data included in the Registration Statement and the Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate or represent the Company’s good faith
estimates that are made on the basis of data derived from such sources.


 






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(g)           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 Exchange Act Rules 13a-15(e) and 15d-15(e)), 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; (ii) have been evaluated by management of the Company for
effectiveness as of the end of the Company’s most recent fiscal quarter; and (iii) are effective in all material respects
to perform the functions for which they were established. Based on the most recent evaluation of its disclosure controls and procedures,
the Company is not aware of (i) any significant deficiencies or material weaknesses in the design or operation of internal control
over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and
report financial information; or (ii) any fraud, whether or not material, that involves management or other employees who have a
significant role in 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 affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting.


 


(h)           This
Agreement. This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as
the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles.


 


(i)            Authorization
of the Shares. The Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered
by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and the issuance
and sale of the Shares is not subject to any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase
the Shares.


 


(j)            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.


 


(k)           No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement and Prospectus, subsequent to the respective
dates as of which information is given in the Registration Statement and Prospectus: (i) there has been no material adverse change,
or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise,
or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of
the Company and its subsidiaries, considered as one entity (any such change is called 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, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary
course of business: and (iii) 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 its subsidiaries on any class of capital stock or repurchase or redemption
by the Company or any of its subsidiaries of any class of capital stock.


 






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(l)            Independent
Accountants. The independent registered public accounting firms which have expressed their opinions with respect to the financial
statements (which term as used in this Agreement includes the related notes thereto) filed with the Commission or incorporated by reference
as a part of the Registration Statement and included in the Prospectus are (i) independent public or certified public accountants
as required by the Securities Act and the Exchange Act, (ii) in compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X; and (iii) registered public accounting firms as defined by the Public Company
Accounting Oversight Board (the “PCAOB”) whose registration has not been suspended or revoked and who has not requested
such registration to be withdrawn.


 


(m)          Preparation
of the Financial Statements. The financial statements filed with the Commission as a part of or incorporated by reference in the
Registration Statement and included in the Prospectus present fairly, in all material respects, the consolidated financial position of
the Company and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods
specified. Such financial statements have been prepared in conformity with generally accepted accounting principles 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 or incorporated in the Registration Statement or the Prospectus. The financial data set forth or incorporated
in the Prospectus under the caption “Selected Consolidated Financial Data”, if applicable, fairly present, in all material
respects, the information set forth therein on a basis consistent with that of the audited financial statements contained, incorporated
or deemed to be incorporated in the Registration Statement 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 and included in the Prospectus.


 


(n)           Company’s
Accounting System. The Company and each of its subsidiaries make and keep accurate books and records and maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii)  transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles 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.


 






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(o)           Incorporation
and Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware 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 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 the failure to so qualify or to be in good standing, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Change.


 


(p)          Incorporation
and Good Standing of the Company’s Subsidiaries. Each subsidiary of the Company 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 Prospectus and 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 so qualify or 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 subsidiary have been duly authorized
and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or adverse claim. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than (i) the subsidiaries listed on Exhibit 21.1 to the Company’s
most recent annual report on Form 10-K and (ii) such other entities omitted from Exhibit 21.1 which, when such omitted
entities are considered in the aggregate as a single subsidiary, would not constitute a “significant subsidiary” within the
meaning of Rule 1-02(w) of Regulation S-X.


 


(q)           Capitalization
and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus
under the caption “Description of Capital Stock” (other than for subsequent issuances, if any, pursuant to employee benefit
plans described in the Prospectus or upon the exercise of outstanding options or warrants, in each case as described in the Prospectus).
The Common Shares (including the Shares) conform in all material respects to the description thereof contained in the Prospectus. All
of the issued and outstanding Common Shares have been duly authorized and validly issued, are fully paid and nonassessable and have been
issued in compliance with federal and state securities laws. None of the outstanding Common 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 accurately described in all material respects in the Prospectus. The description 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
Prospectus accurately and fairly presents in all material respects the information required to be shown with respect to such plans, arrangements,
options and rights.


 






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(r)           Stock
Exchange Listing. The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13
or Section 15(d) of the Exchange Act. The Common Shares are registered pursuant to Section 12(b) of the Exchange
Act and are listed on the Principal Market, and the Company has taken no action designed to, or reasonably likely to have the effect
of, terminating the registration of the Common Shares under the Exchange Act or delisting the Common Shares from the Principal Market,
nor has the Company received any notification that the Commission or the Principal Market is contemplating terminating such registration
or listing.


 


(s)           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 document, as applicable, or is in default
(or, with the giving of notice or lapse of time, would be in default) (“Default”) under any indenture, mortgage, loan
or credit agreement, note, contract, franchise, lease or other instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound (including, without limitation, any credit agreement, indenture, pledge agreement, security agreement
or other instrument or agreement evidencing, guaranteeing, securing or relating to indebtedness of the Company or any of its subsidiaries ),
or to which any of the property or assets of the Company or any of its subsidiaries is subject (each, an “Existing Instrument”),
except for such Defaults as would not, individually or in the aggregate, result in a Material Adverse Change. The Company’s execution,
delivery and performance of this Agreement, consummation of the transactions contemplated hereby and by each applicable Prospectus and
the issuance and sale of the Shares (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 document of the Company
or any subsidiary, as applicable; (ii) will not conflict with or constitute a breach of, or Default 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, Defaults, liens, charges or encumbrances
as would not, individually 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 subsidiary, except as would not
reasonably 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 Prospectus, except (i) such as have been obtained or made by the Company and are in full force and effect under the Securities
Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority (“FINRA”).


 


(t)           No
Material Actions or Proceedings. Except as otherwise disclosed in the Prospectus, there are no material legal or governmental actions,
suits or proceedings pending or, to the Company’s knowledge, threatened (i) against or affecting the Company or any of its
subsidiaries; (ii) which have as the subject thereof any officer or director of, or property owned or leased by, the Company or
any of its subsidiaries; or (iii) relating to environmental or discrimination matters; where in any such case (A) there is
a reasonable possibility that such action, suit or proceeding might be determined adversely to the Company, such subsidiary or such officer
or director, (B) any such action, suit or proceeding, if so determined adversely, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the transactions contemplated by this Agreement or (C) any such action, suit
or proceeding is or would be material in the context of the sale of Shares. Except as otherwise disclosed in the Prospectus, 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.


 






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(u)          Intellectual
Property Rights. The Company and its subsidiaries own or possess the valid right to use all (i) patents, patent applications,
trademarks, trademark registrations, service marks, service mark registrations, Internet domain name registrations, copyrights,
copyright registrations, licenses, trade secret rights (“Intellectual Property Rights”) and (ii) inventions,
software, works of authorships, trademarks, service marks, trade names, databases, formulae, know how, Internet domain names and
other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary confidential information, systems,
or procedures) (collectively, “Intellectual Property Assets”) necessary to conduct their respective businesses described
in the Prospectus, except where the failure to own or possess the valid right to use the Intellectual Property Assets would not, individually
or in the aggregate, result in a Material Adverse Change. The Company and its subsidiaries have not received any opinion from their legal
counsel concluding that any activities of their respective businesses infringe, misappropriate, or otherwise violate, valid and enforceable
Intellectual Property Rights of any other person. The Company and its subsidiaries have not received written notice of any challenge,
which is to their knowledge still pending, by any other person to the rights of the Company and its subsidiaries with respect to any
Intellectual Property Rights or Intellectual Property Assets owned or used by the Company or its subsidiaries that would reasonably be
expected to result in a Material Adverse Change. To the knowledge of the Company, the Company and its subsidiaries’ respective
businesses as now conducted do not give rise to any infringement of, any misappropriation of, or other violation of, any valid and enforceable
Intellectual Property Rights of any other person. All licenses for the use of the Intellectual Property Rights described in the Prospectus
are valid, binding upon, and enforceable by or against the parties thereto in accordance to its terms. The Company has complied in all
material respects with, and is not in breach nor has received any asserted or threatened claim of breach of any Intellectual Property
Rights license, and the Company has no knowledge of any breach or anticipated breach by any other person to any Intellectual Property
Rights license. Except as described in the Prospectus, no claim has been made against the Company alleging the infringement by the Company
of any patent, trademark, service mark, trade name, copyright, trade secret, license in or other intellectual property right or franchise
right of any person that would reasonably be expected to result in a Material Adverse Change. The Company has taken all reasonable steps
to protect, maintain and safeguard its Intellectual Property Rights, including the execution of appropriate nondisclosure and confidentiality
agreements. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment
of any additional amounts with respect to, nor require the consent of any other person in respect of, the Company’s right to own,
use, or hold for use any of the Intellectual Property Rights as owned, used or held for use in the conduct of the business as currently
conducted.


 






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(v)          All
Necessary Permits, etc. Except as otherwise disclosed in the Prospectus, the Company and each subsidiary possess such valid
and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary for the ownership or lease of its properties or the conduct of its businesses (“Permits”) as described in
the Registration, Statement and the Prospectus, or to permit all clinical and nonclinical studies and trials conducted by or on behalf
of the Company and its subsidiaries, except where failure to so possess would not reasonably be expected to, individually or in the aggregate,
result in a Material Adverse Change; and neither the Company nor any subsidiary has received, or has any reason to believe that
it will receive, any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could 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 2(m) above (or elsewhere in the Registration Statement
or the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, adverse claims and
other defects, except such as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Change. 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 consolidated subsidiaries have filed all necessary federal, state and foreign income, property
and franchise tax returns (or have properly requested extensions thereof) and have 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. The Company has made adequate charges, accruals and reserves in the applicable financial
statements referred to in Section 2(m) above in respect of all federal, state and foreign income, property and franchise taxes
for all periods as to which the tax liability of the Company or any of its consolidated subsidiaries has not been finally determined.


 


(y)          Company
Not an “Investment Company.” The Company is not, and after receipt of payment for the Shares will not be, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”).


 


(z)           Insurance.
Except as otherwise disclosed in the Prospectus, 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 are generally deemed 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, 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
subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies expire; or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost
that would not result in a Material Adverse Change. Neither of the Company nor any subsidiary has been denied any insurance coverage which
it has sought or for which it has applied.


 






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(aa)         No
Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries has taken, directly
or indirectly, any action designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the
price of the Common Shares or any other “reference security” (as defined in Rule 100 of Regulation M under the Exchange
Act (“Regulation M”)), whether to facilitate the sale or resale of the Shares or otherwise, and has taken no action
which would directly or indirectly violate Regulation M. The Company acknowledges that the Agents may engage in passive market making
transactions in the Shares on the Principal Market in accordance with Regulation M. The Common Shares are “actively traded securities”
(as defined in Regulation M).


 


(bb)        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 Prospectus which have not been described as required.


 


(cc)         FINRA
Matters. All of the information provided to the Agents or to counsel for the Agents by the Company, its officers and directors and
the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection with letters, filings
or other supplemental information provided to FINRA pursuant to FINRA Rules 5110, 5190 and 5121 is true, complete and correct. The
Company meets the requirements for use of Form S-3 under the Securities Act specified in FINRA Rule 5110(b)(7)(C)(i). Neither
the Company nor any of its Affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is
under common control with, or is a person associated with any member firm of FINRA.


 


(dd)        No
Unlawful Contributions or Other Payments. Except as otherwise disclosed in the Prospectus, 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 law or of the character required to be
disclosed in the Registration Statement and the Prospectus.


 






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(ee)         Compliance
with Environmental Laws. Except as otherwise described in the Prospectus, and except as would not, individually or in the aggregate,
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 law or regulation relating to pollution or protection of human health or 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 emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum and petroleum products (collectively, “Materials of Environmental Concern”), or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental
Concern (collectively, “Environmental Laws”), which violation includes, but is not limited to, noncompliance with
any permits or other governmental authorizations required for the operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and conditions thereof, nor has the Company or any of its subsidiaries
received any written communication, whether from a governmental authority, citizens group, employee or otherwise, that alleges that the
Company or any of its subsidiaries is in violation of any Environmental Law; (ii) there is no claim, action or cause of action filed
with a court or governmental authority, no investigation with respect to which the Company has received written notice, and no written
notice by any person or entity alleging potential liability for investigatory costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys’ fees or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Material of Environmental Concern at any location owned, leased or operated by
the Company or any of its subsidiaries, now or in the past (collectively, “Environmental Claims”), pending or, to
the Company’s knowledge, threatened against the Company or any of its subsidiaries or any person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually or by operation of law; and
(iii) to the Company’s knowledge, there are no past or present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or disposal of any Material of Environmental Concern, that
reasonably could result in a violation of any Environmental Law or form the basis of a potential Environmental Claim against the Company
or any of its subsidiaries or against any person or entity whose liability for any Environmental Claim the Company or any of its subsidiaries
has retained or assumed either contractually or by operation of law.


 


(ff)          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 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 (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. Except
as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change, 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). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any 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 nothing has occurred, whether
by action or failure to act, which would cause the loss of such qualification.


 


(gg)        Brokers.
Except for the Agents, 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.


 






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(hh)        No
Outstanding Loans or Other Extensions of Credit. Except as described in the Prospectus, there are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit
of any of the officers or directors of the Company or any of the immediate family members of any of them.


 


(ii)           Compliance
with Laws. The Company has not been advised, and has no reason to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business,
except where failure to be so in compliance would not be reasonably expected to result in a Material Adverse Change.


 


(jj)           Dividend
Restrictions. Except as disclosed in the Prospectus, 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.


 


(kk)         Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries has, in the course of its actions
for, or on behalf of, the Company or any of its subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expenses relating to political activity; (ii) made 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 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 unlawful payment or benefit.
The Company and its subsidiaries and, to the knowledge of the Company, the Company’s affiliates have conducted their respective
businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.


 


(ll)           Money
Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable
rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.


 






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(mm)       Clinical
Studies. The preclinical tests and clinical trials, and other studies (collectively, “studies”) conducted by or
on behalf of or sponsored by the Company or any of its subsidiaries or in which the Company or any of its subsidiaries or their products
or product candidates have participated 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 all applicable laws and regulations, including, without
limitation, 21 C.F.R. Parts 50, 54, 56, 58, 312 and 812; each description of the results of such studies is accurate and complete in all
material respects and fairly presents the data derived from such studies, and the Company and its subsidiaries have no knowledge of any
other studies the results of which are inconsistent with, or otherwise call into question, the results described or referred to in the
Registration Statement or the Prospectus; no investigational new drug application filed by or on behalf of the Company or any of its subsidiaries
with the U.S. Food and Drug Administration (“FDA”) has been terminated or suspended by the FDA, and neither the FDA
nor any applicable foreign regulatory agency has commenced, or, to the knowledge of the Company, threatened to initiate, any action to
place a clinical hold order on, or otherwise terminate, delay or suspend, any proposed or ongoing studies conducted or proposed to be
conducted by or on behalf of the Company or any of its subsidiaries; the Company and its subsidiaries have made all such filings and hold
all such Permits for the operation of its business required by the FDA or any committee thereof or from any other U.S. or foreign government
or drug or medical device regulatory agency, or health care facility Institutional Review Board (collectively, the “Regulatory
Agencies”); and the Company and its subsidiaries have fulfilled and performed all of their material obligations with respect
to such Permits, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the holder of any such Permit.


 


(nn)        Compliance
with Health Care Laws. The Company and its subsidiaries are, and at all times have been, in compliance in all respects with all applicable
Health Care Laws, and have not engaged in activities which are, as applicable, cause for false claims liability, civil penalties, or mandatory
or permissive exclusion from Medicare, Medicaid, or any other state health care program or federal health care program, except as would
not reasonably be expected, individually or in the aggregate, to have a Material Adverse Change. For purposes of this Agreement, “Health
Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act and the regulations promulgated thereunder; (ii) all
applicable federal, state, local and all applicable foreign health care related fraud and abuse laws, including, without limitation, the
U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the U.S. Physician Payments Sunshine Act (42 U.S.C. § 1320a-7h),
the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)), all
criminal laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health care
fraud criminal provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42
U.S.C. Section 1320d et seq.), the exclusions law (42 U.S.C. § 1320a-7), the civil monetary penalties law (42 U.S.C. §
1320a-7a), HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et
seq.) (“HITECH”), and the regulations promulgated pursuant to such statutes; (iii) Medicare (Title XVIII of the
Social Security Act); (iv) Medicaid (Title XIX of the Social Security Act); and (v) any and all other applicable health care
laws and regulations. Neither the Company nor any of its subsidiaries have received notice of any claim, action, suit, proceeding, hearing,
enforcement, audit, 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, and, to the Company’s
knowledge, no such claim, action, suit, proceeding, hearing, enforcement, audit, investigation, arbitration or other action is threatened.
Neither the Company nor any of its subsidiaries are a party to or have any ongoing reporting obligations pursuant to any corporate integrity
agreements, deferred prosecution agreements, monitoring agreements, consent decrees, settlement orders, plans of correction or similar
agreements with or imposed by any Regulatory Agency or other governmental or regulatory authority. Additionally, neither the Company nor
any of its subsidiaries, nor any of their respective employees, officers or directors has been excluded, suspended or debarred from participation
in any U.S. federal health care program or human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry,
investigation, proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.


 






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(oo)        [Reserved.]


 


(pp)        Sanctions.
Neither the Company nor any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of the Company, after due inquiry,
any agent, affiliate or other person 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, Her 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,
Cuba, Iran, North Korea, and Syria (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”);
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
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. For the past five years, the Company and its subsidiaries have not
knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing
or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.


 


(qq)        Sarbanes-Oxley.
The Company is in compliance, in all material respects, with all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended,
and the rules and regulations promulgated thereunder.


 


(rr)          Duties,
Transfer Taxes, Etc. No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes
are payable by the Agents in the United States or any political subdivision or taxing authority thereof or therein in connection with
the execution, delivery or performance of this Agreement by the Company or the sale and delivery by the Company of the Shares.


 






    16


     


    

 


(ss)         Cybersecurity.
To the Company’s knowledge, the Company and its subsidiaries’ information technology assets and equipment, computers, systems,
networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for,
and operate and perform in all material respects as required in connection with the operation of the business of the Company and its
subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other
corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and data, including “Personal Data,” used in connection with their businesses.
 “Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph,
social security number or tax identification number, driver’s license number, passport number, credit card number, bank information,
or customer or account number; (ii) any information which would qualify as “personally identifying information” under
the Federal Trade Commission Act, as amended; (iii) if applicable to the Company, “personal data” as defined by GDPR
(as defined below); (iv) if applicable to the Company, any information which would qualify as “protected health information”
under HIPAA, as amended by HITECH; and (v) any other piece of information that allows the identification of such natural person,
or his or her family, or permits the collection or analysis of any data related to an identified person’s health or sexual orientation.
To the Company’s knowledge, there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except
for those that have been remedied without material cost or liability or the duty to notify any other person, and there are no incidents
under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material compliance with
all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to
the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.


 


(tt)          Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation HIPAA as amended by HITECH, and the Company
and its subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and
currently are in compliance with, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively,
the “Privacy Laws”) in all material respects. To ensure compliance with the Privacy Laws, the Company and its subsidiaries
have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal
Data (the “Policies”). The Company and its subsidiaries have at all times made all disclosures to users or customers
required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have,
to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any
material respect. The Company further certifies that neither it nor any subsidiary: (i) has received notice of any actual or potential
liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part,
any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree,
or agreement that imposes any obligation or liability under any Privacy Law.


 






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(uu)         No
Reliance. The Company has not relied upon the Agents or the Agents’ legal counsel for any legal, tax or accounting advice in
connection with the offering and sale of the Shares.


 


(vv)         Other
Underwriting Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the market”
or continuous equity transaction.


 


Any certificate signed by
any officer or representative of the Company or any of its subsidiaries and delivered to the Agents or their counsel in connection with
an issuance of Shares shall be deemed a representation and warranty by the Company to the Agents as to the matters covered thereby on
the date of such certificate.


 


The Company acknowledges that
the Agents and, for purposes of the opinions to be delivered pursuant to Section 4(o) hereof, counsel to the Company
and counsel to the Agents, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.


 


Section 3. ISSUANCE AND SALE OF COMMON SHARES


 


(a)            Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions
herein set forth, the Company and the Designated Agent agree that the Company may from time to time seek to sell Shares through the Designated
Agent, acting as sales agent, or directly to the Designated Agent, acting as principal, as follows, with an aggregate Sales Price of
up to the Maximum Program Amount, based on and in accordance with Issuance Notices as the Company may deliver, during the Agency Period.


 


(b)           Sales
through Agents. With respect to the offering and sale of Shares pursuant to this Agreement, the Company agrees that any offer to
sell Shares, any solicitation of an offer to buy Shares, and any sales of Shares shall only be effected by or through a single Agent
on any single given day, and the Company shall in no event request that more than one Agent offer or sell Shares pursuant to this Agreement
on the same day.


 


(c)            Mechanics
of Issuances.


 


(i)             Issuance Notice.
Upon the terms and subject to the conditions set forth herein, on any Trading Day during the Agency Period on which the conditions set
forth in Section 5(a) and Section 5(b) shall have been satisfied, the Company may exercise its right
to request an issuance of Shares by delivering to the Designated Agent an Issuance Notice; provided, however, that (A) in
no event may the Company deliver an Issuance Notice to the extent that (I) the sum of (x) the aggregate Sales Price of the requested
Issuance Amount, plus (y) the aggregate Sales Price of all Shares issued under all previous Issuance Notices effected pursuant to
this Agreement, would exceed the Maximum Program Amount; and (B) prior to delivery of any Issuance Notice, the period set forth for
any previous Issuance Notice shall have expired or been terminated. An Issuance Notice shall be considered delivered on the Trading Day
that it is received by e-mail to the persons set forth in Schedule A hereto for such Designated Agent and confirmed by the Company by
telephone (including a voicemail message to the persons so identified), with the understanding that, with adequate prior written notice,
the Designated Agent may modify the list of such persons from time to time.


 






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(ii)            Designated
Agent Efforts. Upon the terms and subject to the conditions set forth in this Agreement, upon the receipt of an Issuance Notice,
the Designated Agent will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the
Shares with respect to which the Designated Agent has agreed to act as sales agent, subject to, and in accordance with the information
specified in, the Issuance Notice, unless the sale of the Shares described therein has been suspended, cancelled or otherwise terminated
in accordance with the terms of this Agreement. For the avoidance of doubt, the Designated Agent and the Company may modify an Issuance
Notice at any time provided they both agree in writing to any such modification.


 


(iii)          Method
of Offer and Sale. The Shares may be offered and sold (A) in privately negotiated transactions with the consent of the Company;
(B) as block transactions; or (C) by any other method permitted by law deemed to be an “at the market offering”
as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on the Principal Market or sales made
into any other existing trading market of the Common Shares. Nothing in this Agreement shall be deemed to require any party to agree
to the method of offer and sale specified in the preceding sentence, and (except as specified in clauses (A) and (B) above)
the method of placement of any Shares by the Designated Agent shall be at the Designated Agent’s discretion.


 


(iv)          Confirmation
to the Company. If acting as sales agent hereunder, the Designated Agent will provide written confirmation to the Company no later
than the opening of the Trading Day next following the Trading Day on which it has placed Shares hereunder setting forth the number of
shares sold on such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof.


 


(v)           Settlement.
Each issuance of Shares will be settled on the applicable Settlement Date for such issuance of Shares and, subject to the provisions of
Section 5, on or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Shares being sold by crediting the Designated Agent or its designee’s account at The Depository Trust Company through its Deposit/Withdrawal
At Custodian (DWAC) System, or by such other means of delivery as may be mutually agreed upon by the Designated Agent and the Company
and, upon receipt of such Shares, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form,
the Designated Agent will deliver, by wire transfer of immediately available funds, the related Issuance Price in same day funds delivered
to an account designated by the Company prior to the Settlement Date. The Company may sell Shares to the Designated Agent as principal
at a price agreed upon at each relevant time Shares are sold pursuant to this Agreement (each, a “Time of Sale”).


 


(vi)          Suspension
or Termination of Sales. Consistent with standard market settlement practices, the Company or the Designated Agent may, upon notice
to the other party in writing or by telephone (confirmed immediately by verifiable email), suspend any sale of Shares, and the period
set forth in an Issuance Notice shall immediately terminate; provided, however, that (A) such suspension and termination
shall not affect or impair either party’s obligations with respect to any Shares placed or sold hereunder prior to the receipt
of such notice; (B) if the Company suspends or terminates any sale of Shares after the Designated Agent confirms such sale to the
Company, the Company shall still be obligated to comply with Section 3(b)(v) with respect to such Shares; and (C) if
the Company defaults in its obligation to deliver Shares on a Settlement Date, the Company agrees that it will hold the Designated Agent
harmless against any loss, claim, damage or expense (including, without limitation, penalties, interest and reasonable legal fees and
expenses), as incurred, arising out of or in connection with such default by the Company. The parties hereto acknowledge and agree that,
in performing its obligations under this Agreement, the Designated Agent may borrow Common Shares from stock lenders in the event that
the Company has not delivered Shares to settle sales as required by subsection (v) above, and may use the Shares to settle or close
out such borrowings. The Company agrees that no such notice shall be effective against the Designated Agent unless it is made to the
persons identified in writing by the Designated Agent pursuant to Section 3(b)(i).


 






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(vii)         No
Guarantee of Placement, Etc. The Company acknowledges and agrees that (A) there can be no assurance that the Designated Agent
will be successful in placing Shares; (B) the Designated Agent will incur no liability or obligation to the Company or any other
Person if it does not sell Shares; and (C) the Designated Agent shall be under no obligation to purchase Shares on a principal basis
pursuant to this Agreement, except as otherwise specifically agreed by the Designated Agent and the Company.


 


(viii)        Material
Non-Public Information. Notwithstanding any other provision of this Agreement, the Company and the Agents agree that the Company
shall not deliver any Issuance Notice to the Agents, and the Agents shall not be obligated to place any Shares, during any period in
which the Company is in possession of material non-public information.


 


(d)           Fees.
As compensation for services rendered, the Company shall pay to the Designated Agent, on the applicable Settlement Date, the Selling
Commission for the applicable Issuance Amount (including with respect to any suspended or terminated sale pursuant to Section 3(b)(vi))
by the Designated Agent deducting the Selling Commission from the applicable Issuance Amount.


 


(e)           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 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 Shares;
(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 Prospectus, any Free Writing
Prospectus (as defined below) prepared by or on behalf of, used by, or referred to by the Company, and all amendments and supplements
thereto, and this Agreement; (vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the Agents in connection
with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the 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 Agents,
preparing and printing a “Blue Sky Survey” or memorandum and a “Canadian wrapper”, and any supplements
thereto, advising the Agents of such qualifications, registrations, determinations and exemptions; (vii) the reasonable fees and
disbursements of the Agents’ counsel, including the reasonable fees and expenses of counsel for the Agents in connection with,
FINRA review, if any, and approval of the Agents’ participation in the offering and distribution of the Shares; (viii) the
filing fees incident to FINRA review, if any; and (ix) the fees and expenses associated with listing the Shares on the Principal
Market. The fees and disbursements of Agents’ counsel pursuant to subsections (vi) and (vii) above shall not exceed $60,000
in connection with the execution of this Agreement and shall not exceed $10,000 for any fiscal quarter during which an Issuance Notice
is in effect.


 






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Section 4. ADDITIONAL COVENANTS


 


The Company covenants and
agrees with the Agents as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:


 


(a)            Exchange
Act Compliance. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission all reports and
documents required to be filed under Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required
by the Exchange Act; and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual reports on Form 10-K,
a summary detailing, for the relevant reporting period, (1) the number of Shares sold through the Agents pursuant to this Agreement
and (2) the net proceeds received by the Company from such sales or (B) prepare a prospectus supplement containing, or include
in such other filing permitted by the Securities Act or Exchange Act (each an “Interim Prospectus Supplement”),
such summary information and, at least once a quarter and subject to this Section 4, file such Interim Prospectus Supplement pursuant
to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430B under
the Securities Act).


 


(b)            Securities
Act Compliance. After the date of this Agreement, the Company shall promptly advise the Agents in writing (i) of the receipt
of any comments of, or requests for additional or supplemental information from, the Commission; (ii) of the time and date of any
filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus, any Free Writing
Prospectus; (iii) of the time and date that any post-effective amendment to the Registration Statement becomes effective; and (iv) of
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 the Prospectus or of any order preventing or suspending the use of any Free Writing Prospectus
or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common 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 efforts to
obtain the lifting of such order as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of
Rule 424(b) and Rule 433, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any
filings made by the Company under such Rule 424(b) or Rule 433 were received in a timely manner by the Commission.


 






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(c)           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 to a purchaser, not misleading, or if in the opinion of the Agents or their counsel it is otherwise necessary to amend or
supplement the Prospectus to comply with applicable law, including the Securities Act, the Company agrees (subject to Section 4(d) and
4(f)) to promptly prepare, file with the Commission and furnish at its own expense to the Agents, 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 to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law including
the Securities Act. Neither the Agents’ consent to, or delivery of, any such amendment or supplement shall constitute a waiver
of any of the Company’s obligations under Sections 4(d) and 4(f).


 


(d)           Agents’
Review of Proposed Amendments and Supplements. Prior to amending or supplementing the Registration Statement or the Prospectus (excluding
any amendment or supplement through incorporation of any report filed under the Exchange Act), the Company shall furnish to the Agents
for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each such proposed amendment or
supplement, and, if such proposed amendment or supplement relates to the matters contemplated by this Agreement, the Company shall not
file or use any such proposed amendment or supplement without the Agents’ prior consent, and to 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.


 


(e)            Use
of Free Writing Prospectus. Neither the Company nor either Agent has prepared, used, referred to or distributed, or will prepare,
use, refer to or distribute, without the other party’s prior written consent, any “written communication” that
constitutes a “free writing prospectus” as such terms are defined in Rule 405 under
the Securities Act with respect to the offering contemplated by this Agreement (any
such free writing prospectus being referred to herein as a “Free Writing Prospectus”).


 


(f)            Free
Writing Prospectuses. The Company shall furnish to the Agents 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 to be 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 Agents’ consent. The Company shall furnish to the Agents, without charge, as
many copies of any free writing prospectus prepared by or on behalf of, or used by the Company, as the Agents may reasonably request.
If at any time when a prospectus is required by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be
delivered in connection with sales of the Shares (but in any event if at any time through and including the date of this Agreement) 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 that subsequent time, not misleading, the Company shall promptly amend or supplement
such free writing prospectus to eliminate or correct such conflict or 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 subsequent 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 Agents 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
Agents’ consent.


 






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(g)            Filing
of Agent Free Writing Prospectuses. The Company shall not take any action that would result in the Agents 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 the Agents that the Agents otherwise would not have been required to file thereunder.


 


(h)            Copies
of Registration Statement and Prospectus. After the date of this Agreement through the last time that a prospectus is required by
the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered by the Designated Agent in connection
with sales of the Shares, the Company agrees to furnish the Agents with copies (which may be electronic copies) of the Registration Statement
and each amendment thereto, and with copies of the Prospectus and each amendment or supplement thereto in the form in which it is filed
with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities as the Agents
may reasonably request from time to time; and, if the delivery of a prospectus is required under the Securities Act or under the blue
sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any period set forth in an Issuance
Notice in connection with the offering or sale of the Shares and if at such time any event has occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it is necessary during such same period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify
the Agents and to request that the Designated Agent suspend offers to sell Shares (and, if so notified, the Designated Agent shall cease
such offers as soon as practicable); and if the Company decides to amend or supplement the Registration Statement or the Prospectus as
then amended or supplemented, to advise the Designated Agent promptly by telephone (with confirmation in writing) and to prepare and cause
to be filed promptly with the Commission an amendment or supplement to the Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect such compliance; provided, however, that if during such same period
the Designated Agent is required to deliver a prospectus in respect of transactions in the Shares, the Company shall promptly prepare
and file with the Commission such an amendment or supplement.


 


(i)            Blue
Sky Compliance. The Company shall cooperate with the Agents and counsel for the Agents to qualify or register the Shares for sale
under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws of those
jurisdictions designated by the Agents, shall comply with such laws and shall continue such qualifications, registrations and exemptions
in effect so long as required for the distribution of the 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 Agents promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its reasonable efforts to obtain the withdrawal thereof as soon as practicable.


 






    	 	23	 



     


    

 


(j)            Earnings
Statement. As soon as practicable, the Company will make generally available to its security holders and to the Agents 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
occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
under the Securities Act.


 


(k)           Listing;
Reservation of Shares. (a)  The Company will maintain the listing of the Shares on the Principal Market; and (b) the Company
will reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy its
obligations under this Agreement.


 


(l)            Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.


 


(m)          Due
Diligence. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due diligence review conducted
by the Agents in connection with the transactions contemplated hereby, including, without limitation, providing information and making
available documents and senior corporate officers, during normal business hours and at the Company’s principal offices, as the
Agents may reasonably request from time to time.


 


(n)           Representations
and Warranties. The Company acknowledges that each delivery of an Issuance Notice and each delivery of Shares on a Settlement Date
shall be deemed to be (i) an affirmation to the Designated Agent that the representations and warranties of the Company contained
in or made pursuant to this Agreement are true and correct as of the date of such Issuance Notice or of such Settlement Date, as the
case may be, as though made at and as of each such date, except as may be disclosed in the Prospectus (including any documents incorporated
by reference therein and any supplements thereto); and (ii) an undertaking that the Company will advise the Designated Agent if
any of such representations and warranties will not be true and correct as of the Settlement Date for the Shares relating to such Issuance
Notice, as though made at and as of each such date (except that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented relating to such Shares).


 


(o)           Deliverables
at Triggering Event Dates; Certificates. The Company agrees that on or prior to the date of the first Issuance Notice and, during
the term of this Agreement after the date of the first Issuance Notice, upon:


 


(A)            the
filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)), by means
of a post-effective amendment, sticker or supplement, but not by means of incorporation of documents by reference into the Registration
Statement or Prospectus;


 






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(B)            the
filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A
or Form 10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K
or quarterly report on Form 10-Q), in each case, of the Company; or


 


(C)            the
filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than information
 “furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K
relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards
No. 144) that is material to the offering of securities of the Company in the Agents’ reasonable discretion; 


 


(any such event, a “Triggering Event
Date”), the Company shall furnish the Agents (but in the case of clause (C) above only if the Agents reasonably determine
that the information contained in such current report on Form 8-K of the Company is material) with a certificate as of the Triggering
Event Date, in the form and substance satisfactory to the Agents and their counsel, substantially similar to the form previously provided
to the Agents and their counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented,
(A) confirming that the representations and warranties of the Company contained in this Agreement are true and correct, (B) that
the Company has performed all of its obligations hereunder to be performed on or prior to the date of such certificate and as to the matters
set forth in Section 5(a)(iii) hereof, and (C) containing any other certification that the Agents shall reasonably
request. The requirement to provide a certificate under this Section 4(o) shall be waived for any Triggering Event Date
occurring at a time when no Issuance Notice is pending or a suspension is in effect, which waiver shall continue until the earlier to
occur of the date the Company delivers instructions for the sale of Shares hereunder (which for such calendar quarter shall be considered
a Triggering Event Date) and the next occurring Triggering Event Date. Notwithstanding the foregoing, if the Company subsequently decides
to sell Shares following a Triggering Event Date when a suspension was in effect and did not provide the Agents with a certificate under
this Section 4(o), then before the Company delivers the instructions for the sale of Shares or the Agents sell any Shares pursuant
to such instructions, the Company shall provide the Agents with a certificate in conformity with this Section 4(o) dated as
of the date that the instructions for the sale of Shares are issued.


 


(p)            Legal
Opinions. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which
the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding the
date of this Agreement, a negative assurance letter and the written legal opinion of Cooley LLP (the “Corporate Opinion”),
counsel to the Company, and Troutman Pepper Hamilton Sanders LLP, intellectual property counsel to the Company (the “IP Opinion”),
each dated the date of delivery, in form and substance reasonably satisfactory to Agents and their counsel, substantially similar to the
form previously provided to the Agents and their counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus
as then amended or supplemented shall be furnished to the Agents; provided, however, the Company shall be required to furnish no more
than one Corporate Opinion hereunder per calendar year and shall otherwise be required to only furnish a negative assurance letter and
one IP Opinion hereunder per calendar year. In lieu of such opinions for subsequent periodic filings, in the discretion of the Agents,
the Company may furnish a reliance letter from such counsel to the Agents, permitting the Agents to rely on a previously delivered opinion
letter, modified as appropriate for any passage of time or Triggering Event Date (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of such Triggering Event Date).


 






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(q)            Comfort
Letter. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which the
Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding the date
of this Agreement, the Company shall cause PricewaterhouseCoopers LLP, the independent registered public accounting firm who has audited
the financial statements included or incorporated by reference in the Registration Statement, to furnish the Agents a comfort letter,
dated the date of delivery, in form and substance reasonably satisfactory to the Agents and their counsel, substantially similar to the
form previously provided to the Agents and their counsel; provided, however, that any such comfort letter will only be required on the
Triggering Event Date specified to the extent that it contains financial statements filed with the Commission under the Exchange Act and
incorporated or deemed to be incorporated by reference into a Prospectus. If requested by the Agents, the Company shall also cause a comfort
letter to be furnished to the Agents within ten (10) Trading Days of the date of occurrence of any material transaction or event
requiring the filing of a current report on Form 8-K containing material amended financial information of the Company, including
the restatement of the Company’s financial statements. The Company shall be required to furnish no more than one comfort letter
hereunder per calendar quarter.


 


(r)  Secretary’s
Certificate. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date, the Company shall
furnish the Agents a certificate executed by the Secretary of the Company, signing in such capacity, dated the date of delivery (i) certifying
that attached thereto are true and complete copies of the resolutions duly adopted by the Board of Directors of the Company authorizing
the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation,
the issuance of the Shares pursuant to this Agreement), which authorization shall be in full force and effect on and as of the date of
such certificate, (ii) certifying and attesting to the office, incumbency, due authority and specimen signatures of each Person who
executed this Agreement for or on behalf of the Company, and (iii) containing any other
certification that the Agents shall reasonably request.


 


(s)            Agents’
Own Account; Clients’ Account. The Company consents to the Agents trading, in compliance with applicable law, in the Common
Shares for the Agents’ own account and for the account of its clients at the same time as sales of the Shares occur pursuant to
this Agreement.


 


(t)            Investment
Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the 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.


 






    	 	26	 



     


    

 


(u)            Market
Activities. The Company will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Shares or any other reference security, whether to facilitate the sale
or resale of the Shares or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all applicable provisions
of Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with respect to
the Shares or any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then promptly
upon notice from the Agents (or, if later, at the time stated in the notice), the Company will, and shall cause each of its affiliates
to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as interpreted by
the Commission) did apply. The Company shall promptly notify the Agents if it no longer meets the requirements set forth in Section (d) of
Rule 102.


 


(v)            Notice
of Other Sale. Without the written consent of the Agents, the Company will not, directly or indirectly, offer to sell, sell, contract
to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible into or exchangeable for Common
Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares, during the period beginning on the
third Trading Day immediately prior to the date on which any Issuance Notice is delivered to the Designated Agent hereunder and ending
on the third Trading Day immediately following the Settlement Date with respect to Shares sold pursuant to such Issuance Notice; and will
not directly or indirectly enter into any other “at the market” or continuous equity transaction to offer to sell, sell, contract
to sell, grant any option to sell or otherwise dispose of any Common Shares (other than the Shares offered pursuant to this Agreement)
or securities convertible into or exchangeable for Common Shares, warrants or any rights to purchase or acquire Common Shares prior to
the termination of this Agreement; provided, however, that such restrictions will not be required in connection with the Company’s
(i) issuance or sale of Common Shares, options to purchase Common Shares or Common Shares issuable upon the exercise of options or
other equity awards pursuant to any employee or director share option, incentive or benefit plan, share purchase or ownership plan, long-term
incentive plan, dividend reinvestment plan, inducement award under Nasdaq rules or other compensation plan of the Company or its
subsidiaries, as in effect on the date of this Agreement, (ii) issuance or sale of Common Shares issuable upon exchange, conversion
or redemption of securities or the exercise or vesting of warrants, options or other equity awards outstanding at the date of this Agreement,
(iii) issuance or sale of Common Shares or securities convertible into or exchangeable for Common Shares as consideration for mergers,
acquisitions, other business combinations, joint ventures or strategic alliances (each a “Business Transaction”) occurring
after the date of this Agreement which are not used for capital raising purposes; provided, that the aggregate number of Common Shares
issued, or issuable pursuant to the conversion or exchange of securities convertible into or exchangeable for Common Shares, in connection
with such Business Transaction does not exceed 5% of the aggregate number of Common Shares outstanding immediately prior to such Business
Transaction and (iv) modification of any outstanding options, warrants of any rights to purchase or acquire Common Shares.


 






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Section 5. CONDITIONS TO DELIVERY OF ISSUANCE NOTICES AND TO
SETTLEMENT


 


(a)            Conditions
Precedent to the Right of the Company to Deliver an Issuance Notice and the Obligation of the Designated Agent to Sell Shares. The
right of the Company to deliver an Issuance Notice hereunder is subject to the satisfaction, on the date of delivery of such Issuance
Notice, and the obligation of the Designated Agent to use its commercially reasonable efforts to place Shares during the applicable period
set forth in the Issuance Notice is subject to the satisfaction, on each Trading Day during the applicable period set forth in the Issuance,
of each of the following conditions:


 


		(i)	Accuracy of the Company’s Representations and Warranties; Performance by the Company. The
Company shall have delivered the certificate required to be delivered pursuant to Section 4(o) on or before the date
on which delivery of such certificate is required pursuant to Section 4(o). The Company shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company
at or prior to such date, including, but not limited to, the covenants contained in Section 4(p), Section 4(q) and
Section 4(r).



 


		(ii)	No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby that prohibits or directly and materially adversely affects any of
the transactions contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting or
materially adversely affecting any of the transactions contemplated by this Agreement.



 


		(iii)	Material Adverse Changes. Except as disclosed in the Prospectus and the Time of Sale Information,
(a) in the judgment of the Agents there shall not have occurred any Material Adverse Change; and (b) 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 such term is defined for purposes of Section 3(a)(62)
of the Exchange Act.



 


		(iv)	No Suspension of Trading in or Delisting of Common Shares; Other Events. The trading of the Common
Shares (including without limitation the Shares) shall not have been suspended by the Commission, the Principal Market or FINRA and the
Common Shares (including without limitation the Shares) shall have been approved for listing or quotation on and shall not have been delisted
from the Nasdaq Stock Market, the New York Stock Exchange or any of their constituent markets. There shall not have occurred (and be continuing
in the case of occurrences under clauses (i) and (ii) below) any of the following: (i) trading or quotation in any
of the Company’s securities shall have been suspended or limited by the Commission or by the Principal Market or trading in securities
generally on either the Principal Market shall have been suspended or limited, or minimum or maximum prices shall have been generally
established on any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall have been declared
by any of federal or New York, authorities; or (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 Agents is material and adverse and makes it impracticable to market the Shares in the manner and on the terms
described in the Prospectus or to enforce contracts for the sale of securities.



 






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(b)            Documents
Required to be Delivered on each Issuance Notice Date. The Designated Agent’s obligation to use its commercially reasonable
efforts to place Shares hereunder shall additionally be conditioned upon the delivery to the Designated Agent on or before the Issuance
Notice Date of a certificate in form and substance reasonably satisfactory to the Designated Agent, executed by the Chief Executive Officer,
President or Chief Financial Officer of the Company, to the effect that all conditions to the delivery of such Issuance Notice
shall have been satisfied as at the date of such certificate (which certificate shall not be required if the foregoing representations
shall be set forth in the Issuance Notice).


 


(c)            No
Misstatement or Material Omission. Agents shall not have advised the Company that the Registration Statement, the Prospectus or the
Time of Sale Information, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agents’ reasonable
opinion is material, or omits to state a fact that in the Agents’ reasonable opinion is material and is required to be stated therein
or is necessary to make the statements therein not misleading.


 


Section 6. INDEMNIFICATION AND CONTRIBUTION


 


(a)            Indemnification
of the Agents. The Company agrees to indemnify and hold harmless each Agent, each of their officers and employees, and each person,
if any, who controls the applicable Agent within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage,
liability or expense, as incurred, joint or several, to which the Agents or such officer, employee 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 Shares have been offered or sold or at common law or otherwise (including in settlement of any litigation), 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, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) any untrue statement or alleged untrue statement of a material fact contained in 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 or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) any act or failure to
act or any alleged act or failure to act by an Agent in connection with, or relating in any manner to, the Common 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, provided that the Company shall not be liable under this clause (iii) to
the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Agent through its bad faith or
willful misconduct, and to reimburse such Agent and each such officer, employee and controlling person for any and all documented expenses
(including the fees and disbursements of counsel chosen by such Agent) as such expenses are reasonably incurred by such Agent or such
officer, employee 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 written information furnished to the Company by such Agent
expressly for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto),
it being understood and agreed that the only such information furnished by such Agent to the Company consists solely of the name of such
Agent and the first sentence of the ninth paragraph under the caption “Plan of Distribution” in the Prospectus (collectively,
the “Agents Information”). The indemnity agreement set forth in this Section 6(a)  shall be in addition
to any liabilities that the Company may otherwise have.


 






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(b)            Indemnification
of the Company, its Directors and Officers. Each Agent, severally and not jointly, agrees 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 the laws or regulations of foreign jurisdictions where Shares have been offered or sold or at
common law or otherwise (including in settlement of any litigation), insofar as such loss, claim, damage, liability or expense 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, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or
the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein
not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in 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 or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading, 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 written information furnished to the Company by the Agents expressly for use in the Registration Statement, any such Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished
by the Agents to the Company consists solely of the Agents Information, and to reimburse the Company and each such director, officer and
controlling person for any and all documented expenses (including the fees and disbursements of counsel chosen by the Company) as such
expenses are reasonably incurred by the Company or such officer, director or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity agreement set forth in this
Section 6(b) shall be in addition to any liabilities that the Agents may otherwise have.


 






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(c)            Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 6 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 6, notify the indemnifying party in writing of the commencement thereof, but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise
than under the indemnity agreement contained in this Section 6 or to the extent it is not prejudiced as a proximate result
of such failure. 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, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election
so to assume the defense of such action and approval by the indemnified party of counsel (not to be unreasonably withheld, delayed or
conditioned), the indemnifying party will not be liable to such indemnified party under this Section 6 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 Agents (in the case of counsel for the indemnified parties referred to in Section 6(a) above) or the
Company (in the case of counsel for the indemnified parties referred to in Section 6(b) above), (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.


 






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(d)            Settlements.
The indemnifying party under this Section 6 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 6(c) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request; 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.


 


(e)            Contribution.
If the indemnification provided for in this Section 6 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 Agents, on the other hand, from the offering of the 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 such Agent, 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 such Agent, on the other hand, in connection with the offering of the Shares pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total gross proceeds from the offering of the Shares (before deducting
expenses) received by the Company from the applicable Agent bear to the total commissions received by such Agent. The relative fault of
the Company, on the one hand, and such Agent, 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 such Agent, on the other hand, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Agents’ respective obligations to contribute
pursuant to this Section 6(e) are several in proportion to the respective number of Shares they have sold hereunder, and not
joint.


 


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 6(c), any documented 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 6(c) with respect
to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 6(e); provided,
however, that no additional notice shall be required with respect to any action for which notice has been given under Section 6(c) for
purposes of indemnification.


 






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The Company and the Agents
agree that it would not be just and equitable if contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 6(e).


 


Notwithstanding the provisions
of this Section 6(e), an Agent shall not be required to contribute any amount in excess of the agent fees received by such
Agent in connection with the offering contemplated hereby. 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. For purposes
of this Section 6(e), each officer and employee of such Agent and each person, if any, who controls such Agent within the
meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such Agent, 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 with the meaning
of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.


 


Section 7. TERMINATION & SURVIVAL


 


(a)            Term.
Subject to the provisions of this Section 7, the term of this Agreement shall continue from the date of this Agreement until
the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant to this Section 7.


 


(b)            Termination;
Survival Following Termination.


 


		(i)	The Company may terminate this Agreement prior to the end of the Agency Period, by giving written notice
as required by this Agreement, upon ten (10) Trading Days’ notice to the Agents; provided that (A) if the Company terminates
this Agreement after the Designated Agent confirms to the Company any sale of Shares, the Company shall remain obligated to comply with
Section 3(b)(v) with respect to such Shares and (B) Section 2, Section 6, Section 7
and Section 8 shall survive termination of this Agreement. If termination shall occur prior to the Settlement Date for any
sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement.



 


		(ii)	Each Agent may terminate its rights and obligations under this Agreement prior to the end of the Agency
Period, by giving written notice as required by this Agreement, upon ten (10) Trading Days’ notice to the Company. If termination
shall occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of this
Agreement. For avoidance of doubt, the termination by one Agent of its rights and obligations under this Agreement pursuant to this Section 7(b) shall
not affect the rights and obligations of the other Agent under this Agreement.



 


		(iii)	In addition to the survival provision of Section 7(b)(i),
the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers and of the Agents
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 the Agents 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 Shares sold hereunder and any termination
of this Agreement.



 






    	 	33	 



     


    

 


Section 8. MISCELLANEOUS


 


(a)            Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated hereby
as soon as practicable following the date of this Agreement, and may file with the Commission a Current Report on Form 8-K, with
this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and the Company
shall consult with the Agents prior to making such disclosures, and the parties hereto shall use all commercially reasonable efforts,
acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto. No party hereto
shall issue thereafter any press release or like public statement (including, without limitation, any disclosure required in reports filed
with the Commission pursuant to the Exchange Act) related to this Agreement or any of the transactions contemplated hereby without the
prior written approval of the other parties hereto, except as may be necessary or appropriate in the reasonable opinion of the party seeking
to make disclosure to comply with the requirements of applicable law or stock exchange rules. If any such press release or like public
statement is so required, the party making such disclosure shall consult with the other parties prior to making such disclosure, and the
parties shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosure that is reasonably
satisfactory to all parties hereto.


 


(b)           No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the transactions contemplated by this Agreement,
including the determination of any fees, are arm’s-length commercial transactions between the Company and the Agents, (ii) when
acting as a principal under this Agreement, each Agent is and has been acting solely as a principal is not the agent or fiduciary of
the Company, or its stockholders, creditors, employees or any other party, (iii) such Agent has not assumed nor will assume an advisory
or fiduciary responsibility in favor of the Company with respect to the transactions contemplated hereby or the process leading thereto
(irrespective of whether such Agent has advised or is currently advising the Company on other matters) and such Agent does not have any
obligation to the Company with respect to the transactions contemplated hereby except the obligations expressly set forth in this Agreement,
(iv) such Agent and its respective affiliates may be engaged in a broad range of transactions that involve interests that differ
from those of the Company, and (v) such Agent has not provided any legal, accounting, regulatory or tax advice with respect to the
transactions contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate.


 


(c)           Research
Analyst Independence. The Company acknowledges that each Agent’s respective research analysts and research departments are
required to and should be independent from their respective investment banking divisions and are subject to certain regulations and internal
policies, and as such, such Agent’s research analysts may hold views and make statements or investment recommendations and/or publish
research reports with respect to the Company or the offering that differ from the views of their respective investment banking divisions.
The Company understands that each Agent is a full service securities firm and as such from time to time, subject to applicable securities
laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity
securities of the companies that may be the subject of the transactions contemplated by this Agreement.


 






    	 	34	 



     


    

 


(d)            Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered, e-mailed or telecopied and confirmed to the parties
hereto as follows:


 


If to the Agents:


 


SVB
Leerink LLC


1301
Avenue of the Americas, 12th Floor


New York, New York 10019

Attention: Peter M. Fry


E-mail: peter.fry@svbleerink.com


 


with a copy (which shall not constitute
notice) to:


 


SVB Leerink LLC


1301 Avenue of the Americas, 12th Floor


New York, New York 10019


Attention: Stuart R. Nayman, Esq


E-mail: stuart.nayman@svbleerink.com


 


and:


 


Cantor Fitzgerald & Co.


499 Park Avenue


New York, New York 10022


Attention: Capital Markets


Facsimile: (212) 307-3730


 


and:


 


Goodwin Procter LLP


620 Eighth Avenue


New York, New York 10018


Attention: Seo Salimi, Esq.


E-mail: ssalimi@goodwinlaw.com


 


If to the Company:


 


Aclaris Therapeutics, Inc.

640 Lee Road


Suite 200


Wayne, Pennsylvania 19087


Attention: Kamil Ali-Jackson


E-mail:
kalijackson@aclaristx.com


 






    	 	35	 



     


    

 


with a copy (which shall not constitute
notice) to:


 


Cooley
LLP


11951 Freedom Drive


14th Floor


Reston,
Virginia 20190-5640


Facsimile: (703) 456-8100


Attention: Brian
F. Leaf, Esq.


E-mail:
bleaf@cooley.com


 


Any party hereto may change the address for receipt
of communications by giving written notice to the others in accordance with this Section 8(d).


 


(e)           Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 6, and in each case their respective successors, and no other person
will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Shares as such
from the Agents merely by reason of such purchase.


 


(f)            Partial
Unenforceability. The invalidity or unenforceability of any Article, Section, paragraph or provision of this Agreement shall not
affect the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any Article, 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.


 


(g)           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.


 






    	 	36	 



     


    

 


(h)            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, and may be delivered by facsimile transmission or by electronic delivery of a portable document
format (PDF) file. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Article and
Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this
Agreement.


 


[Signature Page Immediately Follows]


 






    	 	37	 



     


    

 


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,
	 	 
	 	ACLARIS THERAPEUTICS, INC. 
	 	 
	 	 
	 	By: 	/s/ Neal Walker
	 	Name: 	Neal Walker 
	 	Title: 	President and Chief Executive Officer 


 


 


The foregoing Agreement is hereby confirmed and
accepted by the Agents in New York, New York as of the date first above written.


 


 


	SVB LEERINK LLC 	 
	 	 
	 	 
	By: 	/s/ Peter M. Fry	 
	Name: 	Peter M. Fry	 
	Title: 	Managing Director, Head of Alternative Equities	 


 


 


	CANTOR FITZGERALD & CO.	 
	 	 
	 	 
	By: 	/s/ Sage Kelly	 
	Name: 	Sage Kelly	 
	Title: 	Global Head of Investment Banking	 


 






    


     


    

 


EXHIBIT A


 


FORM OF ISSUANCE NOTICE


 


	From:	[         ]
	 	[TITLE]
	 	Aclaris Therapeutics, Inc.
	Cc:	[         ]
	To:	[Designated Agent Name] (the “Designated Agent”)
	Subject:	At the Market Offering— Issuance Notice


 


Ladies and Gentlemen:


 


Pursuant
to the terms and subject to the conditions contained in the Sales Agreement, dated May 20, 2021 (the “Agreement”),
by and among Aclaris Therapeutics, Inc., a Delaware corporation (the “Company”), SVB Leerink LLC and Cantor Fitzgerald &
Co. (collectively the “Agents,” and each individually an “Agent”), I hereby request on behalf
of the Company that the Designated Agent sell up to [     ] shares of
common stock, $0.00001 par value per share, of the Company (the “Shares”), at a minimum market price of $[     ]
per share [; provided that no more than [     ] Shares shall
be sold in any one Trading Day (as such term is defined in the Agreement)]. Sales should begin [on the date of this Issuance Notice] and
end on [DATE] [until all Shares that are the subject of this Issuance Notice are sold].


 






    	 	A-1	 



     


    

 


Schedule A


 


Notice Parties


 


The Company


 


Frank Ruffo


fruffo@aclaristx.com


484-321-5554


 


The Agents


 


SVB Leerink LLC


 


		Dan.dubin@svbleerink.com	






		Patrick.mccormack@svbleerink.com	






		atm@svbleerink.com	



 


Cantor Fitzgerald & Co.


 


svasudev@cantor.com


 


With copies to:


 


		CFControlledEquityOffering@cantor.com	



 






    	 	A-2