Exhibit 10.1


 


AT THE MARKET
OFFERING AGREEMENT


 


 


March 26,
2021


 


H.C.
Wainwright & Co., LLC


430
Park Avenue


New
York, New York 10022


 


Ladies
and Gentlemen:


       


Outlook
Therapeutics, Inc., a corporation organized under the laws of Delaware (the “Company”), confirms its agreement (this
 “Agreement”) with H.C. Wainwright & Co., LLC (the “Manager”) as follows:


 


1.              
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.


 


“Accountants” shall
have the meaning ascribed to such term in Section 4(m).


 


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


 


“Action”
shall have the meaning ascribed to such term in Section 3(q).


 


“Affiliate”
shall mean any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 144 under the Act.


 


“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.


 


“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Execution Time.


 


“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).


 


“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).


 


“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee”  or any other similar orders or restrictions or the closure of any physical branch locations at the direction of
any Governmental Authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The
City of New York generally are open for use by customers on such day.


 






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“Commission”
shall mean the United States Securities and Exchange Commission.


 


“Common
Stock” shall have the meaning ascribed to such term in Section 2.


 


“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).


 


“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).


 


“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).


 


“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.


 


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


 


“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.


 


“Filing
Date” shall have the meaning ascribed to such term in Section 4(w).


 


“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.


 


“GAAP”
shall have the meaning ascribed to such term in Section 3(n).


 


“Governmental
Authority” shall mean (i) any federal, state, local, municipal, national or international government or governmental authority,
regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal,
arbitrator or arbitral body (public or private); (ii) any self-regulatory organization (including any stock exchange or quotation system);
or (iii) any political subdivision of any of the foregoing


 


“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.


 






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“Indebtedness”
shall have the meaning ascribed to such term in Section 3(ee).


 


“Intellectual
Property” shall have the meaning ascribed to such term in Section 3(v).


 


“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.


 


“Losses”
shall have the meaning ascribed to such term in Section 7(d).


 


“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).


 


“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).


 


“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).


 


“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).


 


“Placement”
shall have the meaning ascribed to such term in Section 2(c).


 


“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).


 


“Prospectus”
shall mean the Base Prospectus, as supplemented by the most recently filed Prospectus Supplement (if any).


 


“Prospectus
Supplement” shall mean each prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from
time to time.


 


“Registration
Statement” shall mean the shelf registration statement (File Number 333-231922) on Form S-3, including exhibits and
financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b)
and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective
amendment thereto becomes effective, shall also mean such registration statement as so amended.


 


“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).


 






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“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).


 


“Rule 158”,
 “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
 “Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433”
refer to such rules under the Act.


 


“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).


 


“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).


 


“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).


 


“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).


 


“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).


 


“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).


 


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


 


“Trading
Market” means The Nasdaq Capital Market of the NASDAQ Stock Market.


 


2.              
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, such number of shares (the “Shares”)
of the Company’s common stock, $0.01 par value per share (“Common Stock”), having an aggregate offering price of $40,000,000
(the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance
with the limitations set forth in this Section 2 on the number and aggregate sales price of Shares issued and sold under this Agreement
shall be the sole responsibility of the Company and that the Manager shall have no obligation in connection with such compliance.


 


(a)              
Appointment of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement
and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated
herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a
separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such
sale in accordance with Section 2 of this Agreement.


 






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(b)              
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth,
the Company will issue and agrees to sell Shares from time to time through the Manager, acting as sales agent, and the Manager agrees
to use its commercially reasonable efforts to sell, as sales agent for the Company, on the following terms:


 


(i)            The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is
a Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales
(“Sales Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company
will designate the maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d))
and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its
commercially reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The
gross sales price of the Shares sold under this Section 2(b) shall be the market price for the shares of Common Stock sold by the
Manager under this Section 2(b) on the Trading Market at the time of sale of such Shares.


 


(ii)           The
Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the
Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the Shares for any reason
other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation
to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company
pursuant to a Terms Agreement.


 


(iii)          The
Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors
(the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company, and notified
to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by
electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension
or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to
the giving of such notice.


 






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(iv)          The
Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Common
Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that the Manager
receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement
disclosing the terms of such privately negotiated transaction.


 


(v)          The
compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3.0% of the gross sales price
of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall not apply
when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the
relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction of any
transaction fees imposed by any clearing firm, execution broker, or Governmental Authority in respect of such sales, shall constitute
the net proceeds to the Company for such Shares (the “Net Proceeds”).


 


(vi)          The
Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading
on the Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold on such
day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager
with respect to such sales.


 


(vii)         Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City time)
on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such
sales are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Manager’s or its designee’s
account (provided that the Manager shall have given the Company written notice of such designee at least one Trading Day prior to the
Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System or
by such other means of delivery as may be mutually agreed upon by the parties hereto, which Shares in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Manager will deliver the related Net Proceeds
in same day funds to an account designated by the Company. The Company agrees that, if the Company or its transfer agent (if applicable),
defaults in its obligation to deliver duly authorized Shares on a Settlement Date, in addition to and in no way limiting the rights and
obligations set forth in Section 7 hereto, the Company will (i) hold the Manager harmless against any loss, claim, damage, or reasonable,
documented expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such
default by the Company, and (ii) pay to the Manager any commission, discount or other compensation to which the Manager would otherwise
have been entitled absent such default.


 






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(viii)       At
each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation and
warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate
to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable
efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties
of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Section 6 of this Agreement.


 


(ix)          If
the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares
of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive the Distribution,
the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant to a Sales
Notice on the Record Date, the Company shall issue and deliver such Shares to the Manager on the Record Date and the Record Date shall
be the Settlement Date and the Company shall cover any additional costs of the Manager in connection with the delivery of Shares on the
Record Date.


 


(c)              
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement but other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement
will control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the
Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place
of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’
letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the
Manager.


 






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(d)              
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if,
after giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser
of (A) together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under
the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement
by the Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under
no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than
the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer,
and notified to the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount
of Shares sold pursuant to this Agreement to exceed the Maximum Amount.


 


(e)              
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange
Act are satisfied with respect to the Shares, the Company shall give the Manager at least one Business Day’s prior notice of its
intent to sell any Shares in order to allow the Manager time to comply with Regulation M.


 






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3.                 
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time
and on each such time the following representations and warranties are repeated or deemed to be made pursuant to this Agreement.


 


(a)              
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company
that are required to be listed on Exhibit 21.1 pursuant to Item 601 of Regulation S-K are set forth on Exhibit 21.1 to the Company’s
most recent Annual Report on Form 10-K filed with the Commission. The Company owns, directly or indirectly, all of the capital stock
or other equity interests of each Subsidiary free and clear of any “Liens” (which for purposes of this Agreement shall
mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction), and all of the issued
and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase securities.


 


(b)              
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would
not, individually or in the aggregate, result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement,
(ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced
or threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.


 






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(c)              
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s stockholders in
connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the
Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.


 


(d)              
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares
and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of
the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or Governmental Authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound
or affected; except in the case of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in a Material
Adverse Effect.


 


(e)              
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other Governmental Authority
or other “Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind, including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other
than (i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of
application(s) to and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required
thereby, and (iv) such filings as are required to be made under applicable state securities laws and the rules and regulations of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).


 






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(f)               
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will
be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company will reserve
and keep available at all times, shares of Common Stock for the purpose of enabling the Company to satisfy its obligations under this
Agreement. The issuance by the Company of the Shares has been registered under the Act and all of the Shares are freely transferable
and tradable by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission of such
a purchaser). The Shares are being issued pursuant to the Registration Statement. The “Plan of Distribution” section
within the Registration Statement permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the
Shares, the purchasers of such Shares will have good and marketable title to such Shares and the Shares will be freely tradable on the
Trading Market.


 


(g)              
Capitalization. The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital
stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options
under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee
stock purchase plan and pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible into Common
Stock (“Common Stock Equivalents”) outstanding as of the date of the most recently filed periodic report under the
Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by this Agreement that have not been waived. Except as set forth in the SEC Reports, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares
of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company
or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any
Subsidiary. The issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other
securities to any Person. There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that
adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company
or any Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or
similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or
 “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state
securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. No further approval or authorization of any stockholder, the Board or others is required for the issuance
and sale of the Shares. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.


 






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(h)              
Registration Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission the Registration Statement, including a related Base Prospectus, for registration under the Act of the offering
and sale of the Shares. Such Registration Statement is effective and available for the offer and sale of the Shares as of the date hereof.
As filed, the Base Prospectus contains all information required by the Act and the rules thereunder, and, except to the extent the Manager
shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Manager prior to the Execution
Time or prior to any such time this representation is repeated or deemed to be made. The Registration Statement, at the Execution Time,
each such time this representation is repeated or deemed to be made, and at all times during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any offer or
sale of the Shares, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement
was not earlier than the date three years before the Execution Time. The Company meets the transaction requirements with respect to the
aggregate market value of securities being sold pursuant to this offering and during the twelve (12) months prior to this offering, as
set forth in General Instruction I.B.6 of Form S-3, if applicable.


 


(i)                
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when
they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which they were made not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus,
when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and
the rules thereunder, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading.


 






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(j)                
Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution
Time and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date
for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.


 


(k)              
Free Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus
does not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each
Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus that the Company
is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the
Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements
of the Act and the rules thereunder. The Company will not, without the prior consent of the Manager, prepare, use or refer to, any Issuer
Free Writing Prospectuses.


 


(l)                
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A
of the Act in connection with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends
to issue a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness
of the Registration Statement, either temporarily or permanently, or intends or has threatened in writing to do so.


 






    	 	13	 



     


    

 


(m)            
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by
the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the
date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports or incorporated by reference therein comply in all material respects
with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time
of filing. Such financial statements have been prepared in accordance with the requirements of the Act, the Exchange Act, and in conformity
with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis during the periods
involved. Except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial
statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the
Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods
then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. There are no financial statements
(historical or pro forma) that are required to be included or incorporated by reference in the SEC Reports that are not included or incorporated
by reference as required. The Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not described in the SEC Reports. The financial data set forth in each of the SEC Reports
fairly presents, in all material respects, the information set forth therein on a basis consistent with that of the audited financial
statements.


 


(n)              
 [RESERVED]


 


(o)              
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, (i) there has been no event, occurrence or development that has had or that could reasonably be expected
to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required
to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii)
the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash
or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock
and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except (1) pursuant to existing Company
stock option plans or (2) as disclosed in a current report on Form 8-K. The Company does not have pending before the Commission any request
for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement or as set forth in the
SEC Reports, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur
or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or
financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.


 






    	 	14	 



     


    

 


(p)              
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, Governmental Authority (collectively, an “Action”). None
of the Actions set forth in the SEC Reports, (i) adversely affects or challenges the legality, validity or enforceability of this Agreement
or the Shares or (ii) would, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim
of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to
the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any
current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Act.


 


(q)              
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which would reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 






    	 	15	 



     


    

 


(r)               
Compliance. Each of the Company and its Subsidiaries: (i) is and at all times has been in compliance with all statutes,
rules, or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing,
labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company
or its Subsidiaries (“Applicable Laws”), except as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; (ii) has not received any FDA Form 483, notice of adverse finding, warning letter, untitled letter
or other correspondence or notice from the FDA or any other Governmental Authority alleging or asserting noncompliance with any Applicable
Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by
any such Applicable Laws (“Authorizations”); (iii) possesses all material Authorizations and such Authorizations are
valid and in full force and effect and are not in material violation of any term of any such Authorizations; (iv) has not received notice
of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental Authority
or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge
that any such Governmental Authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation
or proceeding; (v) has not received notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend,
modify or revoke any Authorizations and has no knowledge that any such Governmental Authority is considering such action; (vi) has filed,
obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented
by a subsequent submission); and (vii) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be
initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning, “dear healthcare
provider” letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product
defect or violation and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate any such notice
or action.


 






    	 	16	 



     


    

 


(s)               
Environmental Laws.The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(t)                
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in
the SEC Reports, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect
(“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any Material Permit.


 


(u)              
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and
do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens
for the payment of material federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with
GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries
are in compliance.


 






    	 	17	 



     


    

 


(v)              
Intellectual Property. Except as disclosed in the SEC Reports, the Company and its Subsidiaries own, possess, license or
have other rights to use, or could obtain on commercially reasonable terms, all foreign and domestic patents, patent applications, trade
and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, Internet
domain names, know-how and other intellectual property (collectively, the “Intellectual Property”), necessary for
the conduct of their respective businesses as now conducted except to the extent that the failure to own, possess, license or otherwise
hold adequate rights to use such Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect. Except
as disclosed in the SEC Reports (i) there are no rights of third parties to any such Intellectual Property owned by the Company and its
Subsidiaries, except for licenses granted in the ordinary course to third parties, or that could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; (ii) to the Company’s knowledge, there is no infringement by third
parties of any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others challenging the Company’s and its Subsidiaries’ rights in or to any such Intellectual Property, and the
Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim; (iv) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope
of any such Intellectual Property; (v) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark, copyright, trade secret
or other proprietary rights of others; (vi) to the Company’s knowledge, there is no third-party U.S. patent or published U.S. patent
application which contains claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135), or the equivalent in any
other jurisdiction, has been commenced against any patent or patent application described in the SEC Reports as being owned by or licensed
to the Company; and (vii) the Company and its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual
Property has been licensed to the Company or such Subsidiary, and all such agreements are in full force and effect, except, in the case
of any of clauses (i)-(vii) above, for any such infringement by third parties or any such pending or threatened suit, action, proceeding
or claim as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(w)            
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a significant increase in cost.


 


(x)              
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any
Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.


 






    	 	18	 



     


    

 


(y)              
Sarbanes Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries 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 authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability, (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 the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure
controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and
the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the
 “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions
of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.


 


(z)              
Certain Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or
will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with
respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by this Agreement.


 






    	 	19	 



     


    

 


(aa)           
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.


 


(bb)          
No Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its certificate of incorporation,
charter or by-laws or any other organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries
are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any Governmental Authority, except,
in the case of each of clauses (ii) and (iii) above, for any such violation or default that would not, individually or in the aggregate,
have a Material Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement to which
it or any of its Subsidiaries is a party is in default in any respect thereunder where such default would have a Material Adverse Effect.


 


(cc)           
Listing and Maintenance Requirements. The Common Stock is listed on the Trading Market and the issuance of the Shares as
contemplated by this Agreement does not contravene the rules and regulations of the Trading Market. The Common Stock is registered pursuant
to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to
have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification
that the Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof,
received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not
in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that
it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock
is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the
Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection
with such electronic transfer.


 


(dd)          
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or
other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws
of its state of incorporation that is or could become applicable to the Shares.


 






    	 	20	 



     


    

 


(ee)           
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value
of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts
and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The
Company has no knowledge of any facts or circumstances that lead it to believe that it will file for reorganization or liquidation under
the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof. The SEC Reports sets forth as of the
date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary
has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or
amounts owed in excess of $100,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties,
endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected
in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments
in excess of $100,000 due under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is
in default with respect to any Indebtedness.


 


(ff)             
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local
income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on
such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.


 






    	 	21	 



     


    

 


(gg)          
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.


 


(hh)          
Accountants. The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company,
such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with
respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending September 30, 2021.


 


(ii)             
Regulation M Compliance.  The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.


 






    	 	22	 



     


    

 


(jj)             
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
or any non-U.S. counterpart that is manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any
of its Subsidiaries (each such product, a “Product”), such Product is being manufactured, packaged, labeled, tested,
distributed, sold and/or marketed by the Company or its Subsidiaries in material compliance with all applicable Health Care Laws relating
to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory
practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports. There is no
pending, completed or, to the Company’s knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative
or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its Subsidiaries, and none of the Company
or any of its Subsidiaries has received any notice, warning letter or other communication from the FDA or any other Governmental Authority,
which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing
or packaging of, the testing of, the sale of, or the labeling and promotion of any Product, (ii) withdraws its approval of, requests
the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating to,
any Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production
at any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction
with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company
or any of its Subsidiaries, and which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse
Effect. The properties, business and operations of the Company have been and are being conducted in all material respects in accordance
with all applicable Health Care Laws. The Company has not been informed by the FDA or any non-U.S. counterpart that the FDA or any non-U.S.
counterpart will prohibit the marketing, sale, license or use in the United States or in any other territory any product proposed to
be developed, produced or marketed by the Company or any Subsidiary nor has the FDA or any non-U.S. counterpart expressed any concern
as to approving or clearing for marketing any product being developed or proposed to be developed by the Company or any Subsidiary. 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 exclusion law (42 U.S.C. § 1320a-7), the civil monetary penalties law (42 U.S.C. § 1320a-7a),
the statutes, regulations and directives of applicable government funded or sponsored healthcare programs, and the regulations promulgated
pursuant to such statutes; (iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C.
Section 17921 et seq.), and the regulations promulgated thereunder and any state or non-U.S. counterpart thereof or other law or regulation
the purpose of which is to protect the privacy of healthcare information; (iv) Medicare (Title XVIII of the Social Security Act); (v)
Medicaid (Title XIX of the Social Security Act); and (vi) any and all other applicable health care laws and regulations.


  


(kk)          
Regulatory Filings. Except as disclosed in the SEC Reports, neither the Company nor any of its Subsidiaries has failed
to file with the applicable Governmental Authority (including the FDA or any foreign, federal, state or local Governmental Authority
performing functions similar to those performed by the FDA) any required filing, declaration, listing, registration, report or submission,
except for such failures that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect;
except as disclosed in the SEC Reports, all such filings, declarations, listings, registrations, reports or submissions were in material
compliance with applicable laws when filed and no deficiencies have been asserted by any applicable regulatory authority with respect
to any such filings, declarations, listings, registrations, reports or submissions, except for any deficiencies that, individually or
in the aggregate, would not have a Material Adverse Effect. The Company has operated and currently is, in all material respects, in compliance
with all applicable Health Care Laws. The Company has no knowledge of any studies, tests or trials not described in the SEC Reports,
the results of which reasonably call into question in any material respect the results of the studies, tests and trials described in
the SEC Reports.


 






    	 	23	 



     


    

 


(ll)             
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i)
in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market
value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted
under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no
Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with,
the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results
or prospects.


 


(mm)     
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).


 


(nn)          
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended (the “Code”), and the Company shall
so certify upon the Manager’s request.


 


(oo)          
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding
Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System
(the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of
the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor
any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that
is subject to the BHCA and to regulation by the Federal Reserve.


 






    	 	24	 



     


    

 


(pp)          
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary,
threatened.


 


(qq)          
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the SEC Reports.


 


(rr)             
Clinical Studies. The preclinical studies and tests and clinical trials described in the SEC Reports were, and, if still
pending, are being conducted in all material respects in accordance with the experimental protocols, procedures and controls pursuant
to, where applicable, accepted professional and scientific standards for products or product candidates comparable to those being developed
by the Company; the descriptions of such studies, tests and trials, and the results thereof, contained in the SEC Reports are accurate
and complete in all material respects; the Company is not aware of any tests, studies or trials not described in the SEC Reports, the
results of which reasonably call into question the results of the tests, studies and trials described in the SEC Reports; and the Company
has not received any written notice or correspondence from the FDA or any foreign, state or local Governmental Authority exercising comparable
authority or any institutional review board or comparable authority requiring the termination, suspension, clinical hold or material
modification of any tests, studies or trials.


 


(ss)            
ERISA. To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed
to by the Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code; no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred which would result in a material liability to the Company with respect to any such plan excluding transactions effected pursuant
to a statutory or administrative exemption; and for each such plan that is subject to the funding rules of Section 412 of the Code or
Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether
or not waived, and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions. Each of the material
employee benefit plans of the Company complies in all material respects with applicable law.


 






    	 	25	 



     


    

 


(tt)             
Forward-Looking Statements. Each financial or operational projection or other “forward-looking statement” (as
defined by Section 27A of the Securities Act or Section 21E of the Exchange Act, or as defined by any other applicable securities laws)
contained in the SEC Reports (i) was so included by the Company in good faith and with reasonable basis after due consideration by the
Company of the underlying assumptions, estimates and other applicable facts and circumstances and (ii) is accompanied by meaningful cautionary
statements identifying those factors that could cause actual results to differ materially from those in such forward-looking statement.
No such statement was made with the knowledge of an executive officer or director of the Company that it was false or misleading.


 


(uu)          
Cybersecurity. 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, and, to the knowledge of the Company, free and clear of all material bugs, errors, defects, Trojan
horses, time bombs, malware and other corruptants. The Company and its Subsidiaries have implemented 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) “personal data” as defined by GDPR; (iv) any
information which would qualify as “protected health information” under HIPAA; 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. Except as disclosed in the SEC Reports, there have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company 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.


 






    	 	26	 



     


    

 


4.                 
Agreements. The Company agrees with the Manager that:


 


(a)              
Right to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery
of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172,
173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file
any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Manager reasonably objects, provided, however, that the Company has no obligation to provide the Manager any advance copy
of such filing or to provide the Manager an opportunity to object to such filing if the filing does not name the Manager or does not
relate to the transaction herein provided. The Company has properly completed the Prospectus, in a form approved by the Manager, and
filed such Prospectus, as amended at the Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b)
by the Execution Time and will cause any supplement to the Prospectus to be properly completed, in a form approved by the Manager, and
will file such supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed
thereby and will provide evidence reasonably satisfactory to the Manager of such timely filing. The Company will promptly advise the
Manager (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether physically or through compliance with
Rule 172, 173 or any similar rule) is required under the Act in connection with the offering or sale of the Shares, any amendment
to the Registration Statement shall have been filed or become effective (other than any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act), (iii) of any request by the Commission or its staff for any amendment of the Registration
Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose.
The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension
or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as
possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment
to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration
statement declared effective as soon as practicable.


 






    	 	27	 



     


    

 


(b)              
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs
as a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances
then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Registration Statement or
Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to
correct such statement or omission; and (iii) supply any amendment or supplement to the Manager in such quantities as the Manager
may reasonably request.


 


(c)              
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required
(including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered
under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery
of the Prospectus, the Company promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare
and file with the Commission an amendment or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any
supplemented Prospectus to the Manager in such quantities as the Manager may reasonably request.


 


(d)              
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the
Manager an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange
Act shall be deemed to satisfy the requirements of this Section 4(d).


 


(e)              
Delivery of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel
for the Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as the Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.


 






    	 	28	 



     


    

 


(f)               
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the
laws of such jurisdictions as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.


 


(g)              
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the
Manager, and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent
of the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager
or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it
has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it
has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record keeping.


 


(h)              
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously
delivered shall not apply during such three Business Days) for at least three (3) Business Days prior to any date on which the Company
or any Subsidiary offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any
other shares of Common Stock or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive this
obligation, provided, however, the Company may issue and sell Common Stock pursuant to any employee equity plan, stock ownership
plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon
the conversion or exercise of Common Stock Equivalents outstanding at the Execution Time without compliance with the foregoing obligation.


 


(i)                
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security
of the Company to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.


 






    	 	29	 



     


    

 


(j)                
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6
herein.


 


(k)              
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon
the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting
more than 30 Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than
by means of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the Company files
its quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K containing amended financial
information (other than information that is furnished and not filed), if the Manager reasonably determines that the information in such
Form 8-K is material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement
(such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above, a “Representation
Date”), unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager forthwith a certificate
dated and delivered on the Representation Date, in form reasonably satisfactory to the Manager to the effect that the statements contained
in the certificate referred to in Section 6 of this Agreement that were last furnished to the Manager are true and correct at the Representation
Date, as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 6, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented
to the date of delivery of such certificate. The requirement to furnish or cause to be furnished a certificate under this Section 4(k)
shall be waived for any Representation Date occurring at a time at which no instruction to the Manager to sell Shares pursuant to this
Agreement has been delivered by the Company or is pending. Notwithstanding the foregoing, if the Company subsequently decides to sell
Shares following any Representation Date when the Company relied on such waiver and did not provide the Manager a certificate pursuant
to this Section 4(k), then before the Company instructs an the Manager to sell Shares pursuant to this Agreement, the Company shall provide
the Manager such certificate.


 






    	 	30	 



     


    

 


(l)                Bring
Down Opinions; Negative Assurance. At each Representation Date, unless waived by the Manager, the Company shall furnish or cause
to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of counsel to the Company (“Company
Counsel”) addressed to the Manager and dated and delivered on such Representation Date, in form and substance reasonably satisfactory
to the Manager, including a negative assurance representation. The requirement to furnish or cause to be furnished an opinion (but not
with respect to a negative assurance representation) under this Section 4(l) shall be waived for any Representation Date other than a
Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company files its Annual
Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests such deliverable required
this Section 4(l) in connection with a Representation Date, upon which request such deliverable shall be deliverable hereunder.


 


(m)              Auditor
Bring Down “Comfort” Letter. At each Representation Date, unless waived by the Manager, the Company shall cause (1) the
Company’s auditors (the “Accountants”), or other independent accountants satisfactory to the Manager forthwith
to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to furnish the Manager a certificate,
in each case dated on such Representation Date, in form satisfactory to the Manager, of the same tenor as the letters and certificate
referred to in Section 6 of this Agreement but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented
to the date of such letters and certificate. The requirement to furnish or cause to be furnished a “comfort” letter under
this Section 4(m) shall be waived for any Representation Date other than a Representation Date on which a material amendment to the Registration
Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange
Act, unless the Manager reasonably requests the deliverables required by this Section 4(m) in connection with a Representation Date,
upon which request such deliverable shall be deliverable hereunder.


 


(n)              
Due Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement
of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30
Trading Days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably satisfactory
to the Manager, which shall include representatives of management and Accountants. The Company shall cooperate timely with any reasonable
due diligence request from or review conducted by the Manager or its agents from time to time in connection with the transactions contemplated
by this Agreement, including, without limitation, providing information and available documents and access to appropriate corporate officers
and the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such certificates, letters
and opinions from the Company, its officers and its agents, as the Manager may reasonably request. The Company shall reimburse the Manager
for Manager’s counsel’s fees in each such due diligence update session, up to a maximum of $2,500 per update, plus any incidental
expense incurred by the Manager in connection therewith. The requirement to conduct a due diligence session under this Section 4(n) shall
be waived for any Representation Date occurring at a time at which no instruction to the Manager to sell Shares pursuant to this Agreement
has been delivered by the Company or is pending. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following
any Representation Date when the Company relied on such waiver and did not conduct a due diligence session pursuant to this Section 4(n),
then before the Company instructs an the Manager to sell Shares pursuant to this Agreement, the Company shall conduct a due diligence
session in accordance with this Section 4(n).


 






    	 	31	 



     


    

 


(o)              
Acknowledgment of Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s own
account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a
Terms Agreement.


 


(p)              
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q,
as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation
paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent
change in Commission policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.


 


(q)              
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied
as of the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the
result of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.


 


(r)               
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder,
and each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager 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 acceptance
or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be
true and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such
sale, as the case may be, as though made at and as of 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).


 






    	 	32	 



     


    

 


(s)               
Reservation of Shares. The Company shall ensure that there are at all times sufficient shares of Common Stock to provide
for the issuance, free of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common Stock
held in treasury, of the maximum aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement.
The Company will use its commercially reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain
such listing.


 


(t)                
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the
Act, the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act and the regulations thereunder.


 


(u)              
DTC Facility. The Company shall cooperate with Manager and use its reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.


 


(v)              
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.


 


(w)              
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file
a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation,
and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.


 


(x)              
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the
Shares as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional shares of
Common Stock necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly
as practicable. After the effectiveness of any such registration statement, all references to “Registration Statement”
included in this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference
therein pursuant to Item 12 of Form S-3, and all references to “Base Prospectus” included in this Agreement shall
be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in any such registration
statement at the time such registration statement became effective.


 






    	 	33	 



     


    

 


5.                 
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under
this Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation,
printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto),
the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale
of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares
under the Exchange Act, if applicable, and the listing of the Shares on the Trading Market; (vi) any registration or qualification
of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable
fees and expenses of counsel for the Manager relating to such registration and qualification); (vii) the fees and expenses of the
Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (viii) the filing
fee under FINRA Rule 5110; (ix) the reasonable and documented fees and expenses of the Manager’s counsel, not to exceed $50,000
(excluding any periodic due diligence fees provided for under Section 4(n)), which shall be paid upon the Execution Time; and (x) all
other costs and expenses incident to the performance by the Company of its obligations hereunder.


 


6.                 
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement
shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the
Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance
by the Company of its obligations hereunder and (iii) the following additional conditions:


 


(a)              
Filing of Prospectus Supplement. The Prospectus, and any supplement thereto, required by Rule 424 to be filed with
the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares;
each Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder
and under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been
filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending
the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.


 






    	 	34	 



     


    

 


(b)              
Delivery of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager its opinion and negative
assurance statement, dated as of such date and addressed to the Manager in form and substance acceptable to the Manager.


 


(c)              
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate
of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company,
dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus,
any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement
and that:


 


(i)               the
representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if
made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such date;


 


(ii)             no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and


 


(iii)           
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated
Documents, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.


 


(d)              
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants
to have furnished to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in
form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a
review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement
and the Prospectus and provide customary “comfort” as to such review in form and substance satisfactory to the Manager.


 


(e)              
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement,
the Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease
in previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business
or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive
of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery
of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the
Prospectus (exclusive of any amendment or supplement thereto).


 






    	 	35	 



     


    

 


(f)               
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the
time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b).


 


(g)              
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms
and arrangements under this Agreement.


 


(h)              
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading
Market, and satisfactory evidence of such actions shall have been provided to the Manager.


 


(i)                
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to
the Manager such further information, certificates and documents as the Manager may reasonably request.


 


If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance
to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any
time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to
the Company in writing or by telephone or facsimile confirmed in writing.


 


The
documents required to be delivered by this Section 6 shall be delivered to the office of Dentons US LLP, counsel for the Manager, at
1221 Avenue of the Americas, New York, New York 10020, email: rob.condon@dentons.com, on each such date as provided in this Agreement.


 






    	 	36	 



     


    

 


7.                 
Indemnification and Contribution.


 


(a)              
Indemnification by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees
and agents of the Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in
the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or result from or relate to any breach of any of the representations, warranties,
covenants or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Company by the Manager specifically for inclusion
therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have.


 


(b)              
Indemnification by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information
relating to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing
indemnity; provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee
applicable to the Shares and paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise
have.


 






    	 	37	 



     


    

 


(c)              
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded 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, (iii) 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 the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.


 






    	 	38	 



     


    

 


(d)              
Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute
to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending the same) (collectively “Losses”) to which the Company and the Manager may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering
of the Shares; provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker
Fee applicable to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by
the Manager shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement.
Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the
Manager on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).


 


8.                 
Termination.


 


(a)              
The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time upon five Business Days’ prior
written notice. Any such termination shall be without liability of any party to any other party except that (i) with respect to
any pending sale, through the Manager for the Company, the obligations of the Company, including in respect of compensation of the Manager,
shall remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10,
12 and 14 of this Agreement shall remain in full force and effect notwithstanding such termination.


 


(b)              
The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12 and 14 of this Agreement
shall remain in full force and effect notwithstanding such termination.


 






    	 	39	 



     


    

 


(c)              
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a)
or (b) above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all
cases be deemed to provide that Sections 5, 6, 7, 8, 9, 10, 12 and 14 shall remain in full force and effect.


 


(d)              
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares
shall settle in accordance with the provisions of Section 2(b) of this Agreement.


 


(e)              
In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to
such Terms Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company
prior to the Time of Delivery relating to such Shares, if any, and confirmed promptly by facsimile or electronic mail, if since the time
of execution of the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Stock shall have been suspended
by the Commission or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited
or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in
the sole judgment of the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by
the Prospectus (exclusive of any amendment or supplement thereto).


 


9.                 
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 7, and will survive delivery of and payment for the Shares.


 


10.             
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered,
e-mailed or facsimiled to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.


 






    	 	40	 



     


    

 


11.             
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.


 


12.             
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which
it may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase
and sale of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager
in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective
of whether the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will
not claim that the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.


 


13.             
Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written
or oral) between the Company and the Manager with respect to the subject matter hereof.


 


14.             
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right.


 


15.             
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed within the State of New York. Each of the Company and the
Manager: (i) agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively
in New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives
any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the
jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New
York in any such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service of
any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or
in the United States District Court for the Southern District of New York and agrees that service of process upon the Company mailed
by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any
such suit, action or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall
be deemed in every respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall
commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.


 






    	 	41	 



     


    

 


16.             
Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions
contemplated hereby or thereby. 


 


17.             
Counterparts. This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute
an original and all of which together shall constitute one and the same agreement, which may be delivered by facsimile or in .pdf file
via e-mail.


 


18.             
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect
the construction hereof.


         


 


[Signature page
follows]


 


 






    	 	42	 



     


    

 


If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Manager.


 


	 	Very
    truly yours,
	 	 	 	 
	 	Outlook
    Therapeutics, Inc.
	 	 	 	 
	 	By:	 	/s/
    Lawrence A. Kenyon
	 	Name:	 	Lawrence
    A. Kenyon
	 	Title:	 	Chief Executive
    Officer and Chief Financial Officer
	 	 	 	 
	 	 	 	 
	 	Address
    for Notice:
	 	4260
    U.S. Route 1
	 	Monmouth
    Junction, New Jersey 08852
	 	Attention:
    Lawrence A. Kenyon
	 	 	 	 
	 	with
    a copy to:
	 	Cooley
    LLP
	 	55
    Hudson Yards
	 	New
    York, NY 10001
	 	Attention:
    Yvan-Claude Pierre,
	 	Marianne
    Sarrazin




 


The foregoing Agreement
is hereby confirmed and accepted as of the date first written above.


 


H.C. WAINWRIGHT &
CO., LLC


 


 


By: /s/ Mark W. Viklund          


Name: Mark W. Viklund


Title: Chief Executive Officer


 


Address for Notice:


430 Park Avenue, 4th
Floor


New York, NY 10022


Facsimile: (212)
214-0803


Attention: Head
of Investment Banking


 


with a copy
to:


Dentons US LLP


1221 Avenue of
the Americas


New York, NY 10020


Attention: Rob
Condon


 






    	 	43	 



     


    

 


ANNEX
I -- Form of Terms Agreement


 


OUTLOOK THERAPEUTICS,
INC. 


TERMS AGREEMENT


 


Dear
Sirs:


 


Outlook
Therapeutics, Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market
Offering Agreement, dated March [__], 2021 (the “At The Market Offering Agreement”), between the Company and H.C.
Wainwright & Co., LLC (“Manager”), to issue and sell to Manager the securities specified in Schedule I
hereto (the “Purchased Shares”).


 


Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as
therein defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation
to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation
to the Prospectus as amended and supplemented to relate to the Purchased Shares.


 


An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.


 


Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in Schedule I hereto.


 






    	 	44	 



     


    

 


If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.


 





	OUTLOOK
    THERAPEUTICS, INC.	 
	 	 	 	 
	 	 	 	 
	By:	 	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	ACCEPTED
    as of the date first written above.	 
	 	 
	H.C.
    WAINWRIGHT & CO., LLC	 
	 	 
	 	 
	By:	 	 	 
	 	 	Name:	 
	 	 	Title:	 




 






    	 	45