salesagreementex1024_fin






Exhibit 10.24    ANAPTYSBIO, INC.  $150,000,000  COMMON STOCK      SALES AGREEMENT    November 8, 2022    Cowen and Company, LLC  599 Lexington Avenue  New York, NY 10022    Ladies and Gentlemen:    AnaptysBio, Inc. (the “Company”), confirms its agreement (this “Agreement”) with  Cowen and Company, LLC (“Cowen”), as follows:  1.   Issuance and Sale of Shares.  The Company agrees that, from time to time during  the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue  and sell through Cowen, acting as agent and/or principal, shares (the “Placement Shares”) of the  Company’s common stock, par value $0.001 per share (the “Common Stock”), having an  aggregate offering price of up to $150,000,000 (the “Maximum Amount”).  Notwithstanding  anything to the contrary contained herein, the parties hereto agree that compliance with the  limitation set forth in this Section 1 on the number of shares of Common Stock issued and sold  under this Agreement shall be the sole responsibility of the Company, and Cowen shall have no  obligation in connection with such compliance.  The issuance and sale of Common Stock through  Cowen will be effected pursuant to the Registration Statement (as defined below) filed by the  Company and declared effective by the Securities and Exchange Commission (the  “Commission”), although nothing in this Agreement shall be construed as requiring the Company  to use the Registration Statement (as defined below) to issue the Common Stock.    The Company has filed, in accordance with the provisions of the Securities Act of 1933,  as amended, and the rules and regulations thereunder (collectively, the “Securities Act”), with the  Commission a registration statement on Form S-3 (File No. 333-261953), including a base  prospectus, relating to certain securities, including the Common Stock, to be issued from time to  time by the Company, and which incorporates by reference documents that the Company has filed  or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended,  and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has  prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus  Supplement”) to the base prospectus included as part of such registration statement.  The  Company has furnished to Cowen, for use by Cowen, copies of the prospectus included as part of  such registration statement, as supplemented by the Prospectus Supplement, relating to the  Placement Shares.  Except where the context otherwise requires, such registration statement, and  any post-effective amendment thereto, as amended when it became effective, including all  documents filed as part thereof or incorporated by reference therein, and including any information  





 






 - 2 -    contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to  Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant  to Rule 430B or 462(b) of the Securities Act, or any subsequent registration statement on Form S- 3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company with respect to the  Placement Shares, is herein called the “Registration Statement.”  The base prospectus, including  all documents incorporated therein by reference, included in the Registration Statement, as it may  be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or  Prospectus Supplement have most recently been filed by the Company with the Commission  pursuant to Rule 424(b) under the Securities Act, together with any “issuer free writing  prospectus,” as defined in Rule 433 under the Securities Act (“Rule 433”), relating to the  Placement Shares that (i) is consented to by Cowen, hereinafter referred to as a “Permitted Free  Writing Prospectus,” (ii) is required to be filed with the Commission by the Company or (iii) is  exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be  filed with the Commission or, if not required to be filed, in the form retained in the Company’s  records pursuant to Rule 433(g), is herein called the “Prospectus.” Any reference herein to the  Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed  to refer to and include the documents incorporated by reference therein, and any reference herein  to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement  or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of  any document with the Commission deemed to be incorporated by reference therein. For purposes  of this Agreement, all references to the Registration Statement, the Prospectus or to any  amendment or supplement thereto shall be deemed to include any copy filed with the Commission  pursuant to the Electronic Data Gathering Analysis and Retrieval System (“EDGAR”).  2.   Placements.  Each time that the Company wishes to issue and sell the Placement  Shares hereunder (each, a “Placement”), it will notify Cowen by email notice (or other method  mutually agreed to in writing by the parties) (a “Placement Notice”) containing the parameters in  accordance with which it desires the Placement Shares to be sold, which shall at a minimum  include the number of shares of Placement Shares to be issued, the time period during which sales  are requested to be made, any limitation on the number of Placement Shares that may be sold in  any one Trading Day (as defined in Section 3) and any minimum price below which sales may not  be made, a form of which containing such minimum sales parameters necessary is attached hereto  as Schedule 1.  The Placement Notice shall originate from any of the individuals from the  Company set forth on Schedule 2 (with a copy to each of the other individuals from the Company  listed on such schedule), and shall be addressed to each of the individuals from Cowen set forth  on Schedule 2, as such Schedule 2 may be amended from time to time. The Placement Notice  shall be effective upon receipt by Cowen unless and until (i) in accordance with the notice  requirements set forth in Section 4, Cowen declines to accept the terms contained therein for any  reason, in its sole discretion, (ii) the entire amount of the Placement Shares have been sold, (iii) in  accordance with the notice requirements set forth in Section 4, the Company suspends or  terminates the Placement Notice for any reason in its sole discretion, (iv) the Company issues a  subsequent Placement Notice with parameters superseding those on the earlier dated Placement  Notice, or (v) this Agreement has been terminated under the provisions of Section 11.   The amount  of any discount, commission or other compensation to be paid by the Company to Cowen in  connection with the sale of the Placement Shares shall be calculated in accordance with the terms  set forth in Schedule 3.  It is expressly acknowledged and agreed that neither the Company nor  Cowen will have any obligation whatsoever with respect to a Placement or any Placement Shares  





 






 - 3 -    unless and until the Company delivers a Placement Notice to Cowen and Cowen does not decline  such Placement Notice pursuant to the terms set forth above, and then only upon the terms  specified therein and herein.  In the event of a conflict between the terms of this Agreement and  the terms of a Placement Notice, the terms of the Placement Notice will control.  3.   Sale of Placement Shares by Cowen.  Subject to the terms and conditions herein set  forth, upon the Company’s delivery of a Placement Notice, and unless the sale of the Placement  Shares described therein has been declined, suspended, or otherwise terminated in accordance with  the terms of this Agreement, Cowen, for the period specified in the Placement Notice, will use its  commercially reasonable efforts consistent with its normal trading and sales practices and  applicable state and federal laws, rules and regulations and the rules of the Nasdaq Stock Market,  Inc. (“Nasdaq”) to sell such Placement Shares up to the amount specified, and otherwise in  accordance with the terms of such Placement Notice.  Cowen will provide written confirmation to  the Company (including by email correspondence to each of the individuals of the Company set  forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the  individuals to whom the notice is sent, other than via auto-reply) no later than the opening of the  Trading Day (as defined below) immediately following the Trading Day on which it has made  sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such  day, the volume-weighted average price of the Placement Shares sold, and the Net Proceeds (as  defined below) payable to the Company.  In the event the Company engages Cowen for a sale of  Placement Shares that would constitute a “block” within the meaning of Rule 10b-18(a)(5) under  the Exchange Act (a “Block Sale”), the Company will provide Cowen, at Cowen’s request and  upon reasonable advance notice to the Company, on or prior to the Settlement Date (as defined  below), the opinions of counsel, accountant’s letter and officers’ certificates set forth in Section 8  hereof, each dated the Settlement Date, and such other documents and information as Cowen shall  reasonably request. Cowen may sell Placement Shares by any method permitted by law deemed to  be an “at the market” offering as defined in Rule 415 of the Securities Act, including without  limitation sales made through Nasdaq or on any other existing trading market for the Common  Stock.  Cowen shall not purchase Placement Shares for its own account as principal unless  expressly authorized to do so by the Company in a Placement Notice.  The Company acknowledges  and agrees that (i) there can be no assurance that Cowen will be successful in selling Placement  Shares, and (ii) Cowen will incur no liability or obligation to the Company or any other person or  entity if it does not sell Placement Shares for any reason other than a failure by Cowen to use its  commercially reasonable efforts consistent with its normal trading and sales practices to sell such  Placement Shares as required under this Section 3.  For the purposes hereof, “Trading Day” means  any day on which the Company’s Common Stock is purchased and sold on the principal market  on which the Common Stock is listed or quoted.  Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or  deliver, or request the offer or sale, of any Placement Shares pursuant to this Agreement and, by  notice to Cowen given by telephone (confirmed promptly by email), shall cancel any instructions  for the offer or sale of any Placement Shares, and Cowen shall not be obligated to offer or sell any  Placement Shares, (i) during any period in which the Company is, or could be deemed to be, in  possession of material non-public information, or (ii) at any time from and including the date on  which the Company shall issue a press release containing, or shall otherwise publicly announce,  its earnings, revenues or other results of operations (an “Earnings Announcement”) through and  including the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report  





 






 - 4 -    on Form 10-K that includes consolidated financial statements as of and for the same period or  periods, as the case may be, covered by such Earnings Announcement.  4.   Suspension of Sales.    (a) The Company or Cowen may, upon notice to the other party in writing (including  by email correspondence to each of the individuals of the other party set forth on Schedule 2, if  receipt of such correspondence is actually acknowledged by any of the individuals to whom the  notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable  facsimile transmission or email correspondence to each of the individuals of the other party set  forth on Schedule 2), suspend any sale of Placement Shares; provided, however, that such  suspension shall not affect or impair either party’s obligations with respect to any Placement  Shares sold hereunder prior to the receipt of such notice.  While a suspension is in effect, any  obligations under Section 7 hereof with respect to the delivery of certificates, opinions or comfort  letters to Cowen shall be waived.  Each of the parties agrees that no such notice under this Section  4 shall be effective against the other unless it is made to one of the individuals named on Schedule  2 hereto, as such schedule may be amended from time to time.     (b) If either Cowen or the Company has reason to believe that the exemptive provisions  set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect  to the Common Stock, it shall promptly notify the other party, and Cowen may, at its sole  discretion, suspend sales of the Placement Shares under this Agreement.     (c) The Registration Statement was declared effective on January 11, 2022.   Notwithstanding any other provision of this Agreement, during any period in which the  Registration Statement is no longer effective under the Securities Act, the Company shall promptly  notify Cowen, the Company shall not request the sale of any Placement Shares, and Cowen shall  not be obligated to sell or offer to sell any Placement Shares.    5.   Settlement.  (a)  Settlement of Placement Shares.  Unless otherwise specified in the applicable  Placement Notice, settlement for sales of Placement Shares will occur 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” and the first such settlement date, the “First  Delivery Date”).  The amount of proceeds to be delivered to the Company on a Settlement Date  against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate  sales price received by Cowen at which such Placement Shares were sold, after deduction for  (i) Cowen’s commission, discount or other compensation for such sales payable by the Company  pursuant to Section 2 hereof, (ii) any other amounts due and payable by the Company to Cowen  hereunder pursuant to Section 7(g) (Expenses) hereof, and (iii) any transaction fees imposed by  any governmental or self-regulatory organization in respect of such sales.     (b)  Delivery of Placement Shares.  On or before each Settlement Date, the Company  will, or will cause its transfer agent to, electronically transfer the Placement Shares being sold by  crediting Cowen’s or its designee’s account (provided Cowen shall have given the Company  written notice of such designee at least 1 Trading Day prior to the Settlement Date) at The  





 






 - 5 -    Depository Trust Company 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 in all cases  shall be freely tradeable, transferable, registered shares in good deliverable form.  On each  Settlement Date, Cowen will deliver the related Net Proceeds in same day funds to an account  designated by the Company on, or prior to, the Settlement Date.  The Company agrees that if the  Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized  Placement Shares on a Settlement Date (other than as a result of a failure by Cowen to timely  provide instructions for delivery), the Company agrees that in addition to and in no way limiting  the rights and obligations set forth in Section 9(a) (Indemnification and Contribution) hereto, it  will (i) hold Cowen harmless against any loss, claim, damage, or reasonable and 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 Cowen (without duplication)  any commission, discount, or other compensation to which it would otherwise have been entitled  absent such default.  6.   Representations and Warranties of the Company.  The Company represents and  warrants to, and agrees with, Cowen that as of (i) the date of this Agreement, (ii) each Time of  Sale (as defined below), (iii) each Settlement Date, and (iv) each Bring-Down Date (as defined  below) (each date included in (i) through (iv), a “Representation Date”):   (a)  Registration Statement. The Registration Statement and any registration statement  filed pursuant to Rule 462(b) under the Securities Act with respect to the Registration Statement  (a “Rule 462(b) Registration Statement”) have been declared effective by the Commission under  the Securities Act.  The Company has complied to the Commission’s satisfaction with all requests  of the Commission for additional or supplemental information.  No stop order suspending the  effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect  and no proceedings for such purpose have been instituted or are pending or, to the knowledge of  the Company, contemplated or threatened by the Commission.  The Company meets the  requirements for use of Form S-3 under the Securities Act.  The sale of the Placement Shares  hereunder meets the requirements or General Instruction I.B.1 of Form S-3.  (b)  No Misstatement or Omission. The Prospectus when filed complied and, as  amended or supplemented, if applicable, will comply in all material respects with the Securities  Act.  Each of the Registration Statement, any Rule 462(b) Registration Statement, the Prospectus  and any post-effective amendments or supplements thereto, at the time it became effective or its  date, as applicable, complied and as of each Representation Date, complied and will comply in all  material respects with the Securities Act and did not and, as of each Representation Date, did not  and will not contain any untrue statement of a material fact or omit to state a material fact required  to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as  amended or supplemented, as of its date, did not and, as of each Representation Date, will not  contain any untrue statement of a material fact or omit to state a material fact necessary in order  to make the statements therein, in the light of the circumstances under which they were made, not  misleading. The representations and warranties set forth in the two immediately preceding  sentences do not apply to statements in or omissions from the Registration Statement, any  Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus,  or any amendments or supplements thereto, made in reliance upon and in conformity with  information relating to Agent’s Information (as defined below).  There are no contracts or other  





 






 - 6 -    documents required to be described in the Prospectus or to be filed as exhibits to the Registration  Statement which have not been described or filed as required.  As used herein, “Time of Sale”  means with respect to each offering of Placement Shares pursuant to this Agreement, the time of  Cowen’s initial entry into contracts with purchasers for the sale of such Placement Shares.  (c) Offering Materials Furnished to Cowen. The Company has delivered to Cowen one  complete copy of the Registration Statement and a copy of each consent and certificate of experts  filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and  the Prospectus, as amended or supplemented, in such quantities and at such places as Cowen has  reasonably requested. The Registration Statement, the Prospectus and any Permitted Free Writing  Prospectus (to the extent any such Permitted Free Writing Prospectus was required to be filed with  the Commission) delivered to Cowen for use in connection with the public offering of the  Placement Shares contemplated herein have been and will be identical to the versions of such  documents transmitted to the Commission for filing via EDGAR, except to the extent permitted  by Regulation S-T.  (d) Ineligible Issuer Status. The Company is not an “ineligible issuer” in connection with  the offering of the Placement Shares pursuant to Rules 164, 405 and 433 under the Securities Act.  Any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under  the Securities Act has been, or will be, filed with the Commission in accordance with the  requirements of the Securities Act. Each Free Writing Prospectus that the Company has filed, or  is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on  behalf of or used or referred to by the Company complies or will comply in all material respects  with the requirements of Rule 433 under the Securities Act including timely filing with the  Commission or retention where required and legending, and each such Free Writing Prospectus,  as of its issue date and at all subsequent times through the completion of the issuance and sale of  the Shares did not, does not and will not include any information that conflicted, conflicts with or  will conflict with the information contained in the Registration Statement or the Prospectus,  including any document incorporated by reference therein. Except for the Free Writing  Prospectuses, if any, and electronic road shows, if any, furnished to Cowen before first use, the  Company has not prepared, used or referred to, and will not, without Cowen’s prior consent,  prepare, use or refer to, any Free Writing Prospectus.  (e) Due Incorporation; Subsidiary.  (i) The Company has been duly incorporated and is validly existing as a  corporation in good standing under the laws of its jurisdiction of  incorporation. The Company has full corporate power and authority to  conduct all the activities conducted by it, to own or lease all the assets  owned or leased by it and to conduct its business as described in the  Registration Statement and the Prospectus. The Company is duly licensed  or qualified to do business in and in good standing as a foreign corporation  in all jurisdictions in which the nature of the activities conducted by it or  the character of the assets owned or leased by it makes such licensing or  qualification necessary, except to the extent that the failure to be so qualified  or be in good standing would not (i) have a material adverse effect on the  business, properties, assets, business prospects, financial condition, results  of operations or capitalization of the Company and its subsidiaries, taken as  





 






 - 7 -    a whole, or (ii) prevent or materially interfere with the ability of the  Company to issue and sell the Placement Shares under this Agreement (any  such effect, prevention or interference, a “Material Adverse Effect”).  (ii) The only “significant subsidiaries” (as defined in Rule 405 of the rules and  regulations of the Commission) of the Company are the significant  subsidiaries listed on Exhibit 21.1 to the Company’s Annual Report on  Form 10-K, as filed with the Commission, for its most recently completed  fiscal year, other than (i) those subsidiaries not required to be listed on  Exhibit 21.1 by Item 601 of Regulation S-K under the Exchange Act and  (ii) those significant subsidiaries formed since the last day of the most  recently ended fiscal year. Each such significant subsidiary has been duly  organized, is validly existing in good standing (where such concept exists)  under the laws of the jurisdiction of its incorporation, has the corporate  power and authority to own its property and to conduct its business as  described in the Registration Statement and Prospectus and is duly qualified  to transact business and is in good standing, if applicable, in each  jurisdiction in which such qualification is required, except to the extent that  the failure to be so qualified or be in good standing would not have a  Material Adverse Effect; all of the issued share capital or other equity  interests of each subsidiary have been duly and validly authorized and  issued, are fully paid and non-assessable and are owned directly by the  Company, free and clear of all liens, charges, encumbrances, equities,  security interests, restrictions on voting or transfer or any other claims.  (f) Dividend Restrictions. Except as disclosed in the Prospectus, no subsidiary of the  Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company,  or from making any other distribution with respect to such subsidiary’s equity securities or from  repaying to the Company or any other subsidiary of the Company any amounts that may from time  to time become due under any loans or advances to such subsidiary from the Company or from  transferring any property or assets to the Company or to any other subsidiary.  (g) Capitalization. The authorized, issued and outstanding capital stock of the Company is  as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if  any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit or  equity incentive plans referred to in the Registration Statement and the Prospectus or pursuant to  the conversion or exercise of convertible securities or options referred to in the Registration  Statement and the Prospectus). The Common Stock (including the Placement Shares) conform in  all material respects to the description thereof contained in the Prospectus. All of the issued and  outstanding Common Stock have been duly authorized and validly issued, are fully paid and non- assessable, have been issued in compliance with all federal and state securities laws and are not  subject to any preemptive, first refusal, or similar right. Except as set forth in the Registration  Statement and the Prospectus, the Company does not have outstanding, options to purchase, or any  rights or warrants to subscribe for, or any securities or obligations convertible into, or any contracts  or commitments to issue or sell, any shares of capital stock of the Company or its subsidiaries, or  any such warrants, convertible securities or obligations. The descriptions of the Company’s stock  option, stock bonus and other stock plans or arrangements, and the options or other rights granted  





 






 - 8 -    thereunder, set forth in the Registration Statement and the Prospectus accurately and fairly presents  the information required to be shown with respect to such plans, arrangements, options and rights.  (h) Authorization of the Placement Shares. The Placement Shares have been duly  authorized for issuance and sale pursuant to this Agreement and, when issued and delivered by the  Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid  and nonassessable, and the issuance and sale of the Placement Shares is not subject to any  preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase the  Placement Shares.  (i) Financial Statements. The financial statements (including the related notes thereto) and  schedules included or incorporated by reference in the Registration Statement and the Prospectus  present fairly the financial condition of the Company and its consolidated subsidiary as of the  respective dates thereof and their results of operations and cash flows for the respective periods  covered thereby, all in conformity with generally accepted accounting principles applied in the  United States on a consistent basis throughout the entire period involved except as may be set forth  in the related notes thereto and provided, that unaudited interim financial statements, which are  subject to normal year-end adjustments, may not contain certain footnotes, as permitted by the  rules of the Commission. The summary financial information included in the Registration  Statement and the Prospectus present fairly, in all material respects, the information shown therein  and have been compiled on a basis consistent with that of the financial statements included therein  and the books and records of the Company and its consolidated subsidiary. The pro forma financial  statements, if any, and the other pro forma financial information included in the Registration  Statement and the Prospectus present fairly, in all material respects, the information shown therein,  have been prepared in accordance with the Commission’s rules and guidelines with respect to pro  forma financial statements and have been properly computed on the bases described therein. The  assumptions used in the preparation of the pro forma financial statements, if any, and other pro  forma financial information included in the Registration Statement and the Prospectus are  reasonable and the adjustments used therein are appropriate to give effect to the transactions or  circumstances referred to therein. No other financial statements, schedules or reconciliations of  “non-GAAP financial measures” (as such term is defined by the rules and regulations of the  Commission) of the Company are required by the Securities Act and the Exchange Act to be  included in the Registration Statement and the Prospectus. The interactive data in eXtensible  Business Reporting Language included or included or incorporated by reference in the Registration  Statement and the Prospectus fairly presents the information called for in all material respects and  has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.  (j) Independent Accountants. KPMG LLP, who certified the financial statements and  supporting schedules of the Company and its consolidated subsidiary included in the Registration  Statement and the Prospectus, are (i) independent accountants as required by the Securities Act,  the Exchange Act and by the rules of the Public Company Accounting Oversight Board (United  States) (the “PCAOB”), (ii) in compliance with the applicable requirements relating to the  qualification of accountants under Rule 2-01 of Regulation S-X under the Securities Act, and (iii)  a registered public accounting firm as defined by the PCAOB whose registration has not been  suspended or revoked and who has not requested such registration to be withdrawn.  (k) No Material Adverse Changes. Since the respective dates as of which information is  given in the Registration Statement and the Prospectus, except as set forth in the Registration  





 






 - 9 -    Statement and the Prospectus, (i) there has not been a material adverse change, or any development  that would be expected to result in a material adverse change, in the business, properties, assets,  business prospects, financial condition, results of operations or capitalization of the Company and  its subsidiaries, taken as a whole, arising for any reason whatsoever (a “Material Adverse  Change”), (ii) the Company and its subsidiaries, considered as one entity, have not incurred, nor  will it incur, any material liabilities or obligations, indirect, direct or contingent, including without  limitation any losses or interference with their business from fire, explosion, flood, earthquakes,  accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute  or court or governmental action, order or decree, that are material, individually or in the aggregate,  to the Company and its subsidiaries, considered as one entity, nor has it entered into any material  transactions not in the ordinary course of business, other than pursuant to this Agreement and the  transactions referred to herein, and (iii) there has not been any material decrease in the capital  stock or any material increase in any short-term or long-term indebtedness of the Company or its  subsidiaries and there has been no dividend or distribution of any kind declared, paid or made by  the Company or, except for dividends paid to the Company or other subsidiaries, by any of the  Company’s subsidiaries on any class of capital stock, or any repurchase or redemption by the  Company or any of its subsidiaries of any class of capital stock.  (l) Investment Company. The Company is not, and, after giving effect to the issuance and  sale of the Placement Shares and the use of the proceeds therefrom as described in the and the  Prospectus, will not be, an “investment company” or an “affiliated person” of, or “promoter” or  “principal underwriter” for, an “investment company,” as such terms are defined in the Investment  Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated  thereunder (the “Investment Company Act”).  (m) Litigation. Except as set forth in the Registration Statement and the Prospectus, there  are no actions, suits or proceedings pending, or to the Company’s knowledge, threatened against  or affecting, the Company or its subsidiaries or any of its officers in their capacity as such, before  or by any federal or state court, commission, regulatory body, including the Financial Industry  Regulatory Authority, Inc. (“FINRA”) and  the Nasdaq Global Select Market or such other  national securities exchange on which the Common Stock, including any Placement Shares, are  then listed (the “Principal Market”), administrative agency or other governmental body, domestic  or foreign, wherein an unfavorable ruling, decision or finding would reasonably be expected to  have a Material Adverse Effect. The Company has not received any notice of proceedings relating  to the revocation or modification of any authorization, approval, order, license, certificate,  franchise or permit. There are no pending investigations known to the Company involving the  Company by any governmental agency having jurisdiction over the Company or its business or  operations.  (n) Compliance with Laws and Regulations and Performance of Obligations and Contracts.  The Company and its subsidiaries have (i) complied in all material respects with all laws,  regulations and orders applicable to it or its business and (ii) performed in all material respects the  obligations required to be performed by it, and is not in default under any indenture, mortgage,  deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement, lease or  other agreement or instrument (individually, a “Contract” and collectively, “Contracts”) to which  it is a party or by which its property is bound or affected. To the knowledge of the Company, no  other party under any Contract to which it is a party is in default in any respect thereunder or has  





 






 - 10 -    given written or oral notice to the Company or any of its officers or directors of such other party’s  intention to terminate, cancel or refuse to renew any Contract. The Company is not in violation of  any provision of its certificate of incorporation or by-laws. The disclosures included in the  Registration Statement and the Prospectus concerning the effects of Federal, state, local and  foreign laws, rules and regulations on the business of the Company as currently conducted and as  proposed to be conducted are correct in all material respects.   (o) No Consent of Governmental Body Needed. No consent, approval, authorization,  license, registration, qualification or order of, or any filing or declaration with, any court or  arbitrator or governmental or regulatory authority, agency or body is required in connection with  the authorization, issuance, transfer, sale or delivery of the Placement Shares by the Company, in  connection with the execution, delivery and performance of this Agreement by the Company or in  connection with the taking by the Company of any action contemplated hereby, except as have  been obtained under the Securities Act and such as may be required under state securities or Blue  Sky laws or the by-laws and rules of FINRA in connection with the purchase and distribution by  the underwriters of the Placement Shares to be sold by the Company.  (p) Agreement Duly Authorized. The Company has full corporate power and authority to  enter into this Agreement. This Agreement has been duly authorized, executed and delivered by  the Company and constitutes a valid and binding agreement of the Company enforceable against  the Company in accordance with the terms hereof, except as the enforcement may be limited by  applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or  affecting creditors’ rights generally or general equitable principles.  (q) No Conflicts. The execution and delivery by the Company of this Agreement and the  performance of this Agreement, the consummation of the transactions contemplated hereby, and  the application of the net proceeds from the offering and sale of the Placement Shares to be sold  by the Company in the manner set forth in the Prospectus under “Use of Proceeds” do not and will  not (i) violate the certificate of incorporation or by-laws of the Company or (ii) result in the  creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company  or its subsidiaries pursuant to the terms or provisions of, or result in a breach or violation of any  of the terms or provisions of, or constitute a default under, or give any other party a right to  terminate any of its obligations under, or result in the acceleration of any obligation under any  Contract to which the Company or its subsidiaries is a party or by which the Company or its  subsidiaries or any of its properties is bound or affected, or violate or conflict with any judgment,  ruling, decree, order, law, statute, rule or regulation of any court or other governmental agency or  body applicable to the business or properties of the Company or its subsidiaries, except, in the case  of clause (ii) above, as would not reasonably be expected to have a Material Adverse Effect.  (r) Title to Real and Personal Property. The Company and its subsidiaries have good and  marketable title to all properties and assets described in the Registration Statement and the  Prospectus as being owned respectively by it, free and clear of all liens, charges, encumbrances or  restrictions, except as set forth in the Registration Statement and the Prospectus or are not material  to the business of the Company or its subsidiaries. The Company and its subsidiaries have valid,  subsisting and enforceable leases for the properties described in the Prospectus as leased by them,  with such exceptions as are not material and do not materially interfere with the use made and  proposed to be made of such properties by the Company and its subsidiaries.  





 






 - 11 -    (s) Documents Described in Registration Statement. There is no document or Contract  required to be described in the Registration Statement and the Prospectus or to be filed as an exhibit  to the Registration Statement that is not described or filed as required. All such documents and  Contracts described in the Registration Statement and the Prospectus or filed as an exhibit to the  Registration Statement were duly authorized, executed and delivered by the Company, constitute  valid and binding agreements of the Company and are enforceable against the Company in  accordance with the terms thereof.  (t) No Untrue Statement; Statistical and Market Data. No statement, representation,  warranty or covenant made by the Company in this Agreement or made in any certificate or  document required by this Agreement to be delivered to Cowen was or will be, when made,  inaccurate, untrue or incorrect. All statistical, demographic and market-related data included in the  Registration Statement or the Prospectus are based on or derived from sources that the Company  believes to be reliable and accurate in all material respects, and the Company has obtained the  written consent to the use of such data from such sources to the extent required.  (u) No Price Stabilization or Manipulation. Neither the Company nor, to the Company’s  knowledge, any of its directors, officers or controlling persons has taken, directly or indirectly,  any action intended to cause or result in, or which might reasonably be expected to cause or result  in, or which has constituted, stabilization or manipulation, under the Securities Act or otherwise,  of the price of any security of the Company to facilitate the sale or resale of the Placement Shares.  (v) No Registration Rights. No holder of securities of the Company has rights to register  any securities of the Company because of the filing of the Registration Statement, the Prospectus  or the offering of the Placement Shares, except for rights that have been duly waived with respect  to such holder, have expired or have been fulfilled by registration prior to the date of this  Agreement.  (w) Stock Exchange Listing. The Placement Shares are registered pursuant to Section 12(b)  of the Exchange Act and are listed on the Principal Market, and the Company has taken no action  designed to, or likely to have the effect of, terminating the registration of the Placement Shares  under the Exchange Act or delisting the Placement Shares from the Principal Market, nor has the  Company received any notification that the Commission or the Principal Market is contemplating  terminating such registration or listing. To the Company’s knowledge, it is in compliance with all  applicable listing requirements of the Principal Market.  (x) Labor Matters. Neither the Company nor its subsidiaries is involved in any labor dispute  except, where the dispute would not, individually or in the aggregate, have a Material Adverse  Effect, nor, to the knowledge of the Company, is any such dispute threatened.  (y) No Unlawful Payments. Neither the Company nor its subsidiaries, nor any director or  officer of the Company or its subsidiaries, nor, to the knowledge of the Company, any agent,  employee or representative of the Company or its subsidiaries, Affiliate or other person associated  with or acting on behalf of the Company or its subsidiaries, has (i) used any corporate funds for  any unlawful contribution, gift, entertainment or other unlawful expense relating to political  activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct  or indirect unlawful payment of corporate funds or benefit to any foreign or domestic government  or regulatory official or employee, including, without limitation, of any government-owned or  





 






 - 12 -    controlled entity or of a public international organization, or any person acting in an official  capacity for or on behalf of any of the foregoing, or any political party or party official or candidate  for political office; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt  Practices Act of 1977, as amended, the U.K. Bribery Act 2010, or any applicable law or regulation  implementing the OECD Convention on Combating Bribery of Foreign Public Officials in  International Business Transactions, or committed an offense under any other applicable anti- bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in  furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any  rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The  Company has instituted, maintained and enforced, and will continue to maintain and enforce  policies and procedures designed to promote and ensure compliance with all applicable anti- bribery and anti-corruption laws.  (z) Compliance with Anti-Money Laundering Laws. The operations of the Company and  its subsidiaries are and have been conducted at all times in compliance with applicable financial  recordkeeping and reporting requirements, including those of the Currency and Foreign  Transactions Reporting Act of 1970, as amended, those of the Bank Secrecy Act, as amended by  Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to  Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable money  laundering statutes of all jurisdictions in which the Company and its subsidiaries conduct business,  the rules and regulations thereunder and any related or similar rules, regulations or guidelines,  issued, administered or enforced by any governmental or regulatory agency (collectively, the  “Money Laundering Laws”), and no action, suit or proceeding by or before any court or  governmental agency, authority or body or any arbitrator involving the Company or its subsidiaries  with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,  threatened.  (aa) No Conflicts with Sanctions Laws. Neither the Company nor its subsidiaries, nor any  director or officer of the Company or its subsidiaries, nor, to the knowledge of the Company, any  agent, employee or representative of the Company or its subsidiaries, Affiliate or other person  associated with or acting on behalf of the Company or its subsidiaries is currently the subject or  target of any sanctions administered or enforced by the U.S. government (including, without  limitation, the Office of Foreign Assets Control of the U.S. Treasury Department or the U.S.  Department of State and including, without limitation, the designation as a “specially designated  national” or “blocked person”), the United Nations Security Council, the European Union, Her  Majesty’s Treasury of the United Kingdom or other relevant sanctions authority (collectively,  “Sanctions”), nor is the Company or its subsidiaries located, organized or resident in a country or  territory that is the subject or the target of Sanctions, including, without limitation, the so-called  Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of  Ukraine, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Company  will not directly or indirectly use the proceeds of the offering of the Placement Shares hereunder,  or lend, contribute or otherwise make available such proceeds to its subsidiaries, any joint venture  partner or other person or entity (i) to fund or facilitate any activities of or business with any person  that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund  or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner  that will result in a violation by any person (including any person participating in the transaction,  whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the  





 






 - 13 -    Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in,  and will not engage in, any dealings or transactions with any person that at the time of the dealing  or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.  (bb) Taxes. Except as would not reasonably be expected to have a Material Adverse Effect,  the Company and its subsidiaries have filed all federal, state and foreign income and franchise tax  returns and have paid all taxes required to be filed or paid by them and, if due and payable, any  related or similar assessment, fine or penalty levied against them. The Company has made  adequate charges, accruals and reserves in the applicable financial statements referred to in Section  6(i) hereof in respect of all material federal, state and foreign income and franchise taxes for all  periods as to which the tax liability of the Company has not been finally determined.  (cc) Insurance. The Company and its subsidiaries carry, or are covered by, insurance in  such amounts and covering such risks as the Company believes are adequate for the conduct of  their business and the value of their properties and is customary for companies engaged in similar  industries, and all such insurance is in full force and effect. The Company has no reason to believe  that it and its subsidiaries will not be able to (i) renew their existing insurance coverage as and  when such policies expire or (ii) obtain comparable coverage from similar institutions as may be  necessary or appropriate to conduct their business as currently conducted or proposed to be  conducted and at a cost that would not, individually or in the aggregate, result in a Material  Adverse Effect. Neither the Company nor its subsidiaries has been denied any insurance coverage  which it has sought or for which it has applied.  (dd) Benefit Plans. The Company has not maintained or contributed to a defined benefit  plan as defined in Section 3(35) of the Employee Retirement Income Security Act of 1974, as  amended (“ERISA”). No plan maintained or contributed to by the Company that is subject to  ERISA (an “ERISA Plan”) (or any trust created thereunder) has engaged in a “prohibited  transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue  Code of 1986, as amended (the “Code”) that could subject the Company to any material tax penalty  on prohibited transactions or has not adequately been corrected. Each plan maintained or  contributed to by the Company is in compliance in all material respects with all reporting,  disclosure and other requirements of the Code and ERISA as they relate to such plan, except for  any noncompliance which would not result in the imposition of a material liability or penalty. With  respect to each ERISA Plan that is intended to be “qualified” within the meaning of Section 401(a)  of the Code, each ERISA Plan has obtained a favorable determination letter or opinion or advisory  letter, if applicable as to its qualified status under the Code, each such ERISA Plan has timely  adopted all currently effective amendments to the Code to the extent any such amendments are  required under the Code, and, to the knowledge of the Company, there are no existing  circumstances or any events that have occurred that would affect the qualified status of any such  ERISA Plan. The Company has never completely or partially withdrawn from a “multiemployer  plan,” as defined in Section 3(37) of ERISA. Each plan maintained or contributed to by the  Company that is subject to Section 409A of the Code has been administered in compliance with  its terms and the operational and documentary requirements of Section 409A of the Code and the  regulations thereunder.  (ee) Title to Intellectual Property. Except as set forth in the Registration Statement and the  Prospectus, the Company and its subsidiaries own, have valid and enforceable licenses for or  otherwise have adequate rights to use technology (including but not limited to patented, patentable  





 






 - 14 -    and unpatented inventions and unpatentable proprietary or confidential information, systems or  procedures), designs, processes, licenses, patents, patent applications, trademarks, service marks,  trade and service mark registrations, trade secrets, trade names, know how, copyrights and other  works of authorship, computer programs, technical data and information and other intellectual  property (collectively, the “Intellectual Property”) that are or would reasonably be expected to  be material to their business as currently conducted or as currently proposed to be conducted  (including upon the commercialization of products or services described in the Registration  Statement or the Prospectus as under development) or to the development, manufacture, operation  and sale of any products and services sold or proposed to be sold by any of the Company or its  subsidiaries. The Company’s Intellectual Property has not been adjudged by a court of competent  jurisdiction invalid or unenforceable in whole or in part. Except as disclosed in the Registration  Statement and the Prospectus, (i) to the knowledge of the Company, there are no third parties who  have or, or who will be able to establish rights to any Intellectual Property owned by, or licensed  to, the Company or its subsidiaries, except for, and to the extent of, the ownership rights of the  owners of the Intellectual Property which the Registration Statement and the Prospectus disclose  is licensed to the Company; (ii) to the knowledge of the Company, there is no infringement by  third parties of any Intellectual Property owned by, or licensed to, the Company or its subsidiaries;  (iii) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding  or claim by others challenging the Company’s rights in or to any Intellectual Property owned by,  or licensed to, the Company or its subsidiaries, 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 knowledge of the Company, threatened action, suit, proceeding or claim by  others challenging the validity, enforceability or scope of any Intellectual Property owned by, or  licensed to, the Company and its subsidiaries, and the Company is unaware of any facts which  could form a reasonable basis for any such action, suit, proceeding or claim; (v) there is no pending  or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others that  (nor has the Company received any claim from a third party that) the Company or its subsidiaries  infringe or otherwise violate, or would, upon the commercialization of any product or service as  described in the Registration Statement or the Prospectus, infringe or otherwise violate, any patent,  trademark, tradename, service name, copyright, trade secret or other proprietary rights of another,  and the Company and its subsidiaries are unaware of any facts which could form a reasonable basis  for any such action, suit, proceeding or claim; (vi) to the knowledge of the Company, no employee  of the Company is or has been in violation of any term of any employment contract, patent  disclosure agreement, invention assignment agreement, non-competition agreement, non- solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former  employer where the basis of such violation relates to such employee’s employment with the  Company; (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 and its subsidiaries, and  all such agreements are in full force and effect; (viii) to the knowledge of the Company, there is  no prior art that may render any patent within the Intellectual Property invalid or that may render  any patent application within the Intellectual Property unpatentable that has not been disclosed to  the U.S. Patent and Trademark Office; and (ix) to the knowledge of the Company, there are no  material defects in any of the patents or patent applications within the Intellectual Property. Except  as set forth in the Registration Statement and the Prospectus, the Company and its subsidiaries are  not obligated or under any liability whatsoever to make any material payment by way of royalties,  fees or otherwise to any owner or licensee of, or other claimant to, any Intellectual Property, with  





 






 - 15 -    respect to the use thereof or in connection with the conduct of their respective businesses or  otherwise.  (ff) Trademarks. The Company and its subsidiaries own, or are licensed or otherwise have  the full exclusive right to use, all material trademarks and trade names that are used in or  reasonably necessary for the conduct of their business as described in the Prospectus. The  Company has not received any notice of infringement of or conflict with asserted rights of others  with respect to any such trademarks or trade names, or challenging or questioning the validity or  effectiveness of any such trademark or trade name. The use, in connection with the business and  operations of the Company and its subsidiaries of such trademarks and trade names does not, to  the Company’s knowledge, infringe on the rights of any person. Except as set forth in the  Registration Statement and the Prospectus, the Company and its subsidiaries are not obligated or  under any liability whatsoever to make any payment by way of royalties, fees or otherwise to any  owner or licensee of, or other claimant to, any trademark, service mark or trade name with respect  to the use thereof or in connection with the conduct of their business or otherwise.  (gg) Protection of Intellectual Property. The Company and its subsidiaries have taken  reasonable security measures to protect the secrecy, confidentiality and value of all their  Intellectual Property in all material aspects, including, but not limited to complying with all duty  of disclosure requirements before the U.S. Patent and Trademark Office and any other non-U.S.  Patent Offices as appropriate, and has no reason to believe that such Intellectual Property is not or,  if not yet patented or registered, would not be, valid and enforceable against an unauthorized user.  (hh) Related Party Transactions. There are no business relationships or related party  transactions involving the Company or any other person required to be described in the Prospectus  that have not been described. Without limiting the generality of the immediately preceding  sentence, no relationship, direct or indirect, exists between or among the Company on the one  hand, and the directors, officers, stockholders, customers or suppliers of the Company on the other  hand, that is required to be described in the Prospectus and that is not so described. Since inception,  the Company has not, directly or indirectly, extended or maintained credit, arranged to extend  credit, or renewed any extension of credit, in the form of a personal loan, to or for any director or  executive officer of the Company, or to or for any family member or Affiliate of any director or  executive officer of the Company in violation of applicable laws, including Section 13(k) of the  Exchange Act.  (ii) Environmental Matters. Each of the Company and its subsidiaries (i) is in compliance  with any and all applicable federal, state, local and non-U.S. laws and regulations relating to the  protection of human health and safety, the environment or hazardous or toxic substances or wastes,  pollutants or contaminants (collectively, “Environmental Laws”), (ii) has received all permits,  licenses or other approvals required of it under applicable Environmental Laws to conduct its  businesses and (iii) is in compliance with all terms and conditions of any such permit, license or  approval.  (jj) Controls and Procedures.  (i) Disclosure Controls and Procedures. The Company has established and  maintains disclosure controls and procedures (as such term is defined in  Rules 13a-15 and 15d-15 under the Exchange Act) that (A) are designed to  





 






 - 16 -    ensure that material information relating to the Company and its  subsidiaries is made known to the Company’s principal executive officer  and its principal financial officer by others within those entities, particularly  during the periods in which the periodic reports required under the  Exchange Act are being prepared; (B) provide for the periodic evaluation  of the effectiveness of such disclosure controls and procedures as of the end  of the period covered by the Company’s most recent annual or quarterly  report filed with the Commission; and (C) are effective in all material  respects to perform the functions for which they were established.  (ii) Internal Control Over Financial Reporting and Internal Accounting  Controls. The Company maintains (i) effective “internal control over  financial reporting” as defined in, and in compliance with, Rules 13a-15 and  15d-15 under the Exchange Act, and (ii) a system of internal accounting  controls sufficient to provide reasonable assurance that (A) transactions are  executed in accordance with management’s general or specific  authorizations; (B) transactions are recorded as necessary to permit  preparation of financial statements in conformity with generally accepted  accounting principles and to maintain asset accountability; (C) access to  assets is permitted only in accordance with management’s general or  specific authorization; (D) the recorded accountability for assets is  compared with the existing assets at reasonable intervals and appropriate  action is taken with respect to any differences; and (E) the interactive data  in eXtensible Business Reporting Language included or incorporated by  reference in the Registration Statement and the Prospectus fairly presents  the information called for in all material respects and is prepared in  accordance with the Commission’s rules and guidelines applicable thereto.  (iii) No Material Weakness in Internal Controls. Since the end of the Company’s  most recent audited fiscal year, there has been (A) no material weakness in  the Company’s internal control over financial reporting (whether or not  remediated) and (B) no change in the Company’s internal control over  financial reporting that has materially affected, or is reasonably likely to  materially affect, the Company’s internal control over financial reporting.  The Company is not aware of any significant deficiency in the design or  operation of its internal control over financial reporting which is reasonably  likely to adversely affect the Company’s ability to record, process,  summarize and report financial data or any material weaknesses in its  internal controls, except as disclosed in the Registration Statement and the  Prospectus, or in any document incorporated by reference therein, since the  end of the Company’s most recent audited fiscal year; or any fraud, whether  or not material, that involves management or other employees who have a  significant role in the Company’s internal controls.  (kk) Sarbanes-Oxley. The Company is, and after giving effect to the offering and sale of  the Placement Shares will be, in compliance in all material respects with all applicable effective  





 






 - 17 -    provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission  promulgated thereunder.  (ll) Data Presentation. The preclinical studies and clinical trials conducted by or on behalf  of the Company that are described in the Registration Statement and the Prospectus (the  “Company Studies”) were and, if still pending, are being, conducted in all material respects in  accordance with their experimental protocols; the descriptions of the results of the Company  Studies contained in the Registration Statement and the Prospectus are accurate in all material  respects; the Company has no knowledge of any other preclinical studies or clinical trials not  described in the Registration Statement and the Prospectus the results of which are inconsistent  with or otherwise call into question the results described or referred to in the Registration  Statement and the Prospectus; and the Company has not received any written notices or  correspondence from the FDA or any foreign, state or local governmental body exercising  comparable authority (the “Regulatory Agencies”) requiring the termination, suspension or  material modification of any Company Studies that would reasonably be expected to have a  Material Adverse Effect and, to the Company’s knowledge, there are no reasonable grounds for  the same. To the Company’s knowledge, none of the Company Studies involved any investigator  who has been disqualified as a clinical investigator or has been found by the FDA to have engaged  in scientific misconduct.  (mm) Regulatory Filings. The Company has not failed to file with the Regulatory Agencies  any required filing, declaration, listing, registration, report or submission with respect to the  Company’s product candidates that are described or referred to in the Registration Statement or  the Prospectus or any other filing required by any other applicable Regulatory Agency or  governmental authority; all such filings, declarations, listings, registrations, reports or submissions  were in material compliance with applicable laws when filed; all such filings, declarations, listings,  registrations, reports or submissions were timely, complete, accurate and not misleading on the  date filed in all material respects (or were corrected or supplemented by subsequent submission);  and no deficiencies regarding compliance with applicable law have been asserted by any applicable  Regulatory Agency or other governmental authority with respect to any such filings, declarations,  listings, registrations, reports or submissions.  (nn) Licenses and Permits. Except as would not, individually or in the aggregate, have a  Material Adverse Effect, (i) the Company and its subsidiaries hold, and are operating in  compliance with, such permits, licenses, franchises, registrations, exemptions, approvals,  authorizations and clearances of any other governmental authorities (including, without limitation,  the FDA) required for the conduct of its business as currently conducted (collectively, the  “Permits”), and all such Permits are in full force and effect; and (ii) the Company and its  subsidiaries have fulfilled and performed all of their obligations with respect to the Permits, and,  to the Company’s knowledge, no event has occurred which allows, or after notice or lapse of time  would allow, revocation or termination thereof or results in any other impairment of the rights of  the holder of any Permit. All applications, notifications, submissions, information, claims, reports  and statistics, and other data and conclusions derived therefrom, utilized as the basis for any and  all requests for a Permit from the FDA or other governmental authority relating to the Company  or its subsidiaries, its business and its products, when submitted to the FDA or other governmental  authority by or on behalf of the Company or its subsidiaries, were true, complete and correct in all  material respects. Any necessary or required updates, changes, corrections or modification to such  





 






 - 18 -    applications, notifications, submissions, information, claims, reports and statistics and other data  have been submitted to the FDA or other governmental authority, except as would not, individually  or in the aggregate, have a Material Adverse Effect. The Company and its subsidiaries have not  received any notification, correspondence or any other written communication, including  notification of any pending or, to the Company’s knowledge, threatened claim, suit, proceeding,  hearing, enforcement, investigation, arbitration or other action from any governmental authority,  including, without limitation, the FDA, of potential or actual material non-compliance by, or  material liability of, the Company or its subsidiaries under any Permits. To the Company’s  knowledge, there are no facts or circumstances that would reasonably be expected to give rise to  any material liability of the Company or its subsidiaries under any Permits.  (oo) Compliance with Certain Regulatory Matters. The Company, its subsidiaries, and to  the Company’s knowledge, its directors, officers, employees and agents have operated and  currently are in compliance in all material respects with applicable Health Care Laws. For purposes  of this Agreement, “Health Care Laws” includes, without limitation: (i) the Federal Food, Drug,  and Cosmetic Act (21 U.S.C. Section 301 et seq.), the Public Health Service Act (42 U.S.C. Section  201 et seq.), and the regulations promulgated thereunder; (ii) all applicable federal, state, local and  foreign health care fraud and abuse laws, including, without limitation, the Anti-Kickback Statute  (42 U.S.C. Section 1320a-7b(b)), the Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the  criminal false statements law (42 U.S.C. Section 1320a-7b(a)), 18 U.S.C. Sections 286 and 287,  the health care fraud criminal provisions under HIPAA (42 U.S.C. Section 1320d et seq.), the Stark  Law (42 U.S.C. Section 1395nn), the civil monetary penalties law (42 U.S.C. Section 1320a-7a),  the exclusion law (42 U.S.C. Section 1320a-7), the Physician Payments Sunshine Act (42 U.S.C.  Section 1320-7h), and applicable laws governing government funded or sponsored healthcare  programs; (iii) HIPAA, as amended by the Health Information Technology for Economic and  Clinical Health Act (42 U.S.C. Section 17921 et seq.); (iv) the Patient Protection and Affordable  Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010; (v)  licensure, quality, safety and accreditation requirements under applicable federal, state, local or  foreign laws or regulatory bodies; and (vi) all other local, state, federal, national, supranational  and foreign laws, relating to the regulation of the Company or its subsidiaries, and (vii) the  directives and regulations promulgated pursuant to such statutes and any state or non-U.S.  counterpart thereof. Neither the Company, its subsidiaries, nor, to the knowledge of the Company,  any of their respective directors, officers, employees or agents has been debarred, excluded or  suspended from participation in or receiving payment from any federal, state or local government  health care program or is subject to an audit, investigation, proceeding, or other similar action by  any governmental authority that could reasonably be expected to result in debarment, suspension  or exclusion.  (pp) Absence of Certain Regulatory Actions. Except as described in the Registration  Statement and the Prospectus, or as would not, individually or in the aggregate, have a Material  Adverse Effect, the Company and its subsidiaries, have not had any product or manufacturing site  (whether Company-owned or that of a contract manufacturer for Company product candidates)  subject to a governmental authority (including, without limitation, the FDA) shutdown or import  or export prohibition, nor have the Company and its subsidiaries received any FDA Form 483 or  other governmental authority notice of inspectional observations, “warning letters,” “untitled  letters,” requests to make changes to the Company products, processes or operations, or similar  correspondence or notice from the FDA or other governmental authority alleging or asserting  





 






 - 19 -    material noncompliance with any applicable laws. To the Company’s knowledge, neither the FDA  nor any other governmental authority has threatened such action. Neither the Company nor its  subsidiaries, has received written notice of any claim, action, suit, proceeding, hearing,  enforcement, investigation, arbitration or other action from any court, arbitrator, Regulatory  Agency, or other governmental authority or third party alleging that any product operation or  activity is in violation of any Health Care Laws nor, to the Company’s knowledge, is any such  claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action  threatened.  (qq) No Rating. Neither the Company nor its subsidiaries, has debt securities or preferred  stock that is rated by any “nationally recognized statistical rating organization” (as such term is  defined in Section 3(a)(62) of the Exchange Act).  (rr) No Broker’s Fees. The Company is not a party to any contract, agreement or  understanding with any person (other than this Agreement) that would give rise to a valid claim  against the Company or any Underwriter for a brokerage commission, finder’s fee or like payment  in connection with the offering and sale of the Placement Shares.  (ss) Required Filings. The Company has timely made all filings required to be made by it  under the Exchange Act.  (tt) FINRA Matters. All of the information provided to Cowen or to counsel for Cowen by  the Company, or to the Company’s knowledge, by its counsel, its officers and directors and the  holders of any securities (debt or equity) or options to acquire any securities of the Company in  connection with the offering of the Placement Shares is true, complete, correct and compliant with  FINRA’s rules and any letters, filings or other supplemental information provided to FINRA  pursuant to FINRA Rules or NASD Conduct Rules is true, complete and correct. The Company  meets the definition of the term “experienced issuer” specified in FINRA Rule 5110(j)(6). Duties,  Transfer Taxes, Etc. No stamp or other issuance or transfer taxes or duties and no capital gains,  income, withholding or other taxes are payable by Cowen in the United States or any political  subdivision or taxing authority thereof or therein in connection with the execution, delivery or  performance of this Agreement by the Company or the sale and delivery by the Company of the  Placement Shares.  (uu) Cybersecurity. The Company’s and its subsidiaries’ information technology assets  and equipment, computers, systems, networks, hardware, software, websites, applications, and  databases (collectively, “IT Systems”) are reasonably adequate for, and operate and perform in all  material respects as required in connection with the operation of the business of the Company and  its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan  horses, time bombs, malware and other corruptants. The Company and its subsidiaries have  implemented and maintained commercially reasonable physical, technical and administrative  controls, policies, procedures, and safeguards to maintain and protect all 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)  any information that relates to an identified or identifiable individual or device, including, but not  limited to, name, address, telephone number, email address, username and password, photograph,  government-issued identifier, online identifier, or any other data used or intended to be used to  identify, contact or precisely locate an individual and (ii) any other information which is classified  





 






 - 20 -    as “personal data,” “personal information,” “personally identifiable information” (or other similar  term) under the Privacy Laws or Policies. There have been no material disruptions to or violations  or outages of any of the IT Systems nor any occurrence of any unlawful, accidental, or  unauthorized destruction, loss, modification or disclosure, use of, or access to, any IT Systems,  confidential information, or Personal Data maintained by or on behalf of the Company, nor any  incidents under internal review or investigations relating to any of the foregoing. Except as would  not reasonably be expected to have a Material Adverse Effect, the Company and its subsidiaries  are presently in 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 Processing of  Personal Data and to the protection of such IT Systems and Personal Data from unlawful,  accidental, or unauthorized destruction, loss, disclosure, use, access, misappropriation or  modification.  (vv) Data Privacy Laws. Except as would not reasonably be expected to have a Material  Adverse Effect, the Company and its subsidiaries are, and at all prior times were, in compliance  with all applicable state and federal laws and regulations relating to data privacy and security or  the Company’s collection, storage, use, retention, disclosure, transfer, disposal, handling, analysis,  or other processing (collectively, “Processing”) of data, including, without limitation, the Health  Insurance Portability and Accountability Act of 1996, as amended by the Health Information  Technology for Economic and Clinical Health Act, including all rules and regulations promulgated  thereunder (“HIPAA”), Regulation (EU) 2016/679 of the European Parliament and of the Council  of 27 April 2016, as amended from time to time, and all national laws and regulations  implementing it (“EU GDPR”) and the European Union General Data Protection Regulation as it  forms part of UK law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (as  amended, including by the Data Protection, Privacy and Electronic Communications  (Amendments etc.) (EU Exit) Regulations 2019) (“UK GDPR”) (collectively, the “Privacy  Laws”). The Company and its subsidiaries have in place, comply with, and take appropriate steps  designed to ensure compliance in all material respects with all of their policies and procedures  relating to data privacy and security and the Company’s Processing of Personal Data (the  “Policies”). The Company and its subsidiaries have at all times made all disclosures to users or  customers required by Privacy Laws and Policies, and t none of such disclosures made or contained  in any Policy have been inaccurate or in violation of any applicable laws and regulatory rules or  requirements in any material respect. The Company further certifies that neither it nor any  subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual  or potential violation of, any of the Privacy Laws or the Company’s Processing of Personal Data,  and has no knowledge of any event or condition that would reasonably be expected to result in any  such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation,  remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order,  decree, or agreement that imposes any obligation or liability under any Privacy Law.  (ww) Other Underwriting Agreements. The Company is not a party to any agreement with  an agent or underwriter for any other “at the market” or continuous equity transaction.  Any certificate signed by an officer of the Company and delivered to Cowen or to counsel for  Cowen pursuant to or in connection with this Agreement shall be deemed to be a representation  and warranty by the Company to Cowen as to the matters set forth therein.  





 






 - 21 -    The Company acknowledges that Cowen and, for purposes of the opinions to be delivered pursuant  to Section 7 hereof, counsel to the Company and counsel to Cowen, will rely upon the accuracy  and truthfulness of the foregoing representations and hereby consents to such reliance.  7.   Covenants of the Company.  The Company covenants and agrees with Cowen that:  (a)  Registration Statement Amendments.  After the date of this Agreement and during  any period in which a Prospectus relating to any Placement Shares is required to be delivered by  Cowen under the Securities Act (including in circumstances where such requirement may be  satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify Cowen  promptly of the time when any subsequent amendment to the Registration Statement, other than  documents incorporated by reference or amendments not related to the Placement Shares, has been  filed with the Commission and/or has become effective or any subsequent supplement to the  Prospectus related to the Placement Shares has been filed and of any request by the Commission  for any amendment or supplement to the Registration Statement or Prospectus related to the  Placement Shares or for additional information, (ii) the Company will prepare and file with the  Commission, promptly upon Cowen’s reasonable request, any amendments or supplements to the  Registration Statement or Prospectus that, in Cowen’s reasonable opinion, may be necessary or  advisable to comply with applicable law in connection with the distribution of the Placement  Shares by Cowen (provided, however, that the failure of Cowen to make such request shall not  relieve the Company of any obligation or liability hereunder, or affect Cowen’s right to rely on the  representations and warranties made by the Company in this Agreement and provided further, that  the only remedy Cowen shall have with respect to the failure to make such filing shall be to cease  making sales under this Agreement until such amendment or supplement is filed); (iii) the  Company will not file any amendment or supplement to the Registration Statement or Prospectus,  other than documents incorporated by reference, relating to the Placement Shares or a security  convertible into the Placement Shares unless a copy thereof has been submitted to Cowen within  a reasonable period of time before the filing and Cowen has not reasonably objected thereto in  writing (provided, however, that (A) the failure of Cowen to make such objection shall not relieve  the Company of any obligation or liability hereunder, or affect Cowen’s right to rely on the  representations and warranties made by the Company in this Agreement, (B) the Company has no  obligation to provide Cowen any advance copy of such filing or to provide Cowen an opportunity  to object to such filing if the filing does not name Cowen or does not relate to the transaction herein  provided and, (C) the only remedy Cowen shall have with respect to the failure by the Company  to provide Cowen with such copy or the filing or such amendment or supplement despite Cowen’s  objection shall be to cease making sales under this Agreement)  and the Company will furnish to  Cowen at the time of filing thereof a copy of any document that upon filing is deemed to be  incorporated by reference into the Registration Statement or Prospectus, except for those  documents available via EDGAR; (iv) the Company will cause each amendment or supplement to  the Prospectus, other than documents incorporated by reference, to be filed with the Commission  as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act, and (v) prior  to the termination of this Agreement, the Company will notify Cowen if at any time the  Registration Statement shall no longer be effective as a result of the passage of time pursuant to  Rule 415 under the Securities Act or otherwise.  The determination to file or not file any  amendment or supplement with the Commission under this Section 7(a) shall be made exclusively  by the Company.  Prior to the initial sale of any Placement Shares, the Company shall file a final  Prospectus Supplement pursuant to Rule 424(b) relating to the Placement Shares.    





 






 - 22 -    (b)  Notice of Commission Stop Orders.  The Company will advise Cowen, promptly  after it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the  Commission of any stop order suspending the effectiveness of the Registration Statement, of the  suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or  of the initiation or threatening of any proceeding for any such purpose; and it will promptly use its  commercially reasonable efforts to prevent the issuance of any stop order or to obtain its  withdrawal if such a stop order should be issued.  (c)  Delivery of Prospectus; Subsequent Changes.  During any period in which a  Prospectus relating to the Placement Shares is required to be delivered by Cowen under the  Securities Act with respect to a pending sale of the Placement Shares, (including in circumstances  where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the  Company will comply with all requirements imposed upon it by the Securities Act, as from time  to time in force, and to file on or before their respective due dates all reports and any definitive  proxy or information statements required to be filed by the Company with the Commission  pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act.   If during such period any event occurs as a result of which the Prospectus as then amended or  supplemented would include an untrue statement of a material fact or omit to state a material fact  necessary to make the statements therein, in the light of the circumstances then existing, not  misleading, or if during such period it is necessary to amend or supplement the Registration  Statement or Prospectus to comply with the Securities Act, the Company will promptly notify  Cowen to suspend the offering of Placement Shares during such period and the Company will  promptly amend or supplement the Registration Statement or Prospectus (at the expense of the  Company) so as to correct such statement or omission or effect such compliance; provided,  however, that the Company may delay any such amendment or supplement if, in the judgment of  the Company, it is in the best interest of the Company to do so, provided that no Placement Notice  is in effect during such time.  (d)  Listing of Placement Shares.  During any period in which the Prospectus relating  to the Placement Shares is required to be delivered by Cowen under the Securities Act with respect  to a pending sale of the Placement Shares (including in circumstances where such requirement  may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its  commercially reasonable efforts to cause the Placement Shares to be listed on Nasdaq and to  qualify the Placement Shares for sale under the securities laws of such jurisdictions as Cowen  reasonably designates and to continue such qualifications in effect so long as required for the  distribution of the Placement Shares; provided, however, that the Company shall not be required  in connection therewith to qualify as a foreign corporation or dealer in securities or file a general  consent to service of process in any jurisdiction.  (e)  Delivery of Registration Statement and Prospectus.  The Company will furnish to  Cowen and its counsel (at the expense of the Company) copies of the Registration Statement, the  Prospectus (including all documents incorporated by reference therein) and all amendments and  supplements to the Registration Statement or Prospectus that are filed with the Commission during  any period in which a Prospectus relating to the Placement Shares is required to be delivered under  the Securities Act (including all documents filed with the Commission during such period that are  deemed to be incorporated by reference therein), in each case as soon as reasonably practicable  and in such quantities as Cowen may from time to time reasonably request and, at Cowen’s request,  





 






 - 23 -    will also furnish copies of the Prospectus to each exchange or market on which sales of the  Placement Shares may be made; provided, however, that the Company shall not be required to  furnish any document (other than the Prospectus) to Cowen to the extent such document is  available on EDGAR.    (f)  Earnings Statement.  The Company will make generally available to its security  holders as soon as practicable, but in any event not later than 15 months after the end of the  Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies  the provisions of Section 11(a) and Rule 158 of the Securities Act. For the avoidance of doubt, the  Company’s compliance with the reporting requirements of the Exchange Act shall be deemed to  satisfy this Section 7(f).  (g)  Expenses.  The Company, whether or not the transactions contemplated hereunder  are consummated or this Agreement is terminated, in accordance with the provisions of Section  11 hereunder, will pay the following expenses all incident to the performance of its obligations  hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing  of the Registration Statement and each amendment and supplement thereto, of each Prospectus  and of each amendment and supplement thereto, (ii) the preparation, issuance and delivery of the  Placement Shares, (iii) the qualification of the Placement Shares under securities laws in  accordance with the provisions of Section 7(d) of this Agreement, including filing fees (provided,  however, that any fees or disbursements of counsel for Cowen in connection therewith shall be  paid by Cowen except as set forth in (vii) below), (iv) the printing and delivery to Cowen of copies  of the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the fees  and expenses incurred in connection with the listing or qualification of the Placement Shares for  trading on Nasdaq, (vi) the filing fees and expenses, if any, of the Commission, (vii) the filing fees  and associated legal expenses of Cowen’s outside counsel for filings with the FINRA Corporate  Financing Department , such legal expense reimbursement not to exceed $10,000 and, (viii) the  reasonable fees and disbursements of Cowen’s counsel in an amount not to exceed $75,000.      (h) Use of Proceeds.  The Company will use the Net Proceeds as described in the  Prospectus in the section entitled “Use of Proceeds.”  (i) Notice of Other Sales.  During the pendency of any Placement Notice given hereunder,  and for 3 trading days following the termination of any Placement Notice given hereunder, the  Company shall provide Cowen notice as promptly as reasonably possible before it offers to sell,  contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common  Stock (other than Placement Shares offered pursuant to the provisions of this Agreement) or  securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase  or acquire Common Stock; provided, that such notice shall not be required in connection with the  (i) issuance, grant or sale of Common Stock, options to purchase shares of Common Stock or any  other equity awards or Common Stock issuable upon the exercise or settlement of options or other  equity awards pursuant to any stock option, stock bonus or other stock plan or arrangement  described in the Prospectus or any inducement equity awards pursuant to Rule 5634(c)(4) of the  Nasdaq Listing Rules, (ii) the issuance of securities in connection with an acquisition, merger or  sale or purchase of assets, or joint venture, commercial, strategic or collaborative relationship, or  (iii) the issuance or sale of Common Stock pursuant to any dividend reinvestment plan that the  Company may adopt from time to time provided the implementation of such is disclosed to Cowen  in advance or (iv) the issuance of any shares of common stock issuable upon the exchange,  





 






 - 24 -    conversion or redemption of securities or the exercise of warrants, options or other rights in effect  or outstanding.  (j)  Change of Circumstances.  The Company will, at any time during a fiscal quarter  in which the Company intends to tender a Placement Notice or sell Placement Shares, advise  Cowen promptly after it shall have received notice or obtained knowledge thereof, of any  information or fact that would alter or affect in any material respect any opinion, certificate, letter  or other document required to be provided to Cowen pursuant to this Agreement, provided, that  the Company may satisfy its obligations under this Section 7(j) by effecting a filing in accordance  with the Exchange Act with respect to such information or fact  (k)  Due Diligence Cooperation.  During the term of the Agreement, the Company will  cooperate with any reasonable due diligence review conducted by Cowen or its agents in  connection with the transactions contemplated hereby, including, without limitation, providing  information and making available documents and senior corporate officers, during regular business  hours and at the Company’s principal offices, as Cowen may reasonably request.  (l)  Required Filings Relating to Placement of Placement Shares.  The Company agrees  that on such dates as the Securities Act shall require, the Company will (i) file a prospectus  supplement with the Commission under the applicable paragraph of Rule 424(b) under the  Securities Act (each and every filing under Rule 424(b), a “Filing Date”), and (ii) if requested in  writing by Cowen, deliver such number of copies of each such prospectus supplement to each  exchange or market on which such sales were effected as may be required by the rules or  regulations of such exchange or market.  The Company shall disclose in its quarterly reports on  Form 10-Q and in its annual report on Form 10-K, the number of the Placement Shares sold  through Cowen under this Agreement, and the gross proceeds and Net Proceeds to the Company  from the sale of the Placement Shares and the compensation paid by the Company with respect to  sales of the Placement Shares pursuant to this Agreement during the relevant quarter or, in the case  of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the  fourth quarter of such fiscal year.  (m)  Bring-Down Dates; Certificate.  On or prior to the First Delivery Date, and during  the term of this Agreement, and each time (i) the Company files the Prospectus relating to the  Placement Shares or amends or supplements the Registration Statement or the Prospectus relating  to the Placement Shares (other than a prospectus supplement filed in accordance with Section 7(l)  of this Agreement) by means of a post-effective amendment, sticker, or supplement but not by  means of incorporation of document(s) by reference to the Registration Statement or the  Prospectus relating to the Placement Shares; (ii) the Company files an 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; or (iv) the Company files a report on Form 8-K containing amended financial  information (other than an earnings release or other information “furnished” pursuant to Item 2.02  or Item 7.01 of Form 8-K) under the Exchange Act (each date of filing of one or more of the  documents referred to in clauses (i) through (iv) shall be a "Bring-Down Date"); the Company  shall furnish Cowen with a certificate, in the form attached hereto as Exhibit 7(m) within three (3)  Trading Days of any Bring-Down Date if requested by Cowen.  The requirement to provide a  certificate under this Section 7(m) shall be waived for any Bring-Down Date occurring at a time  at which no Placement Notice is pending, which waiver shall continue until the earlier to occur of  the date the Company delivers a Placement Notice hereunder (which for such calendar quarter  





 






 - 25 -    shall be considered a Bring-Down Date) and the next occurring Bring-Down Date; provided,  however, that such waiver shall not apply for any Bring-Down Date on which the Company files  its annual report on Form 10-K.  Notwithstanding the foregoing, if the Company subsequently  decides to sell Placement Shares following a Bring-Down Date when the Company relied on such  waiver and did not provide Cowen with a certificate under this Section 7(m), then before the  Company delivers the Placement Notice or Cowen sells any Placement Shares, the Company shall  provide Cowen with a certificate, in the form attached hereto as Exhibit 7(m), dated the date of the  Placement Notice.  (n)  Legal Opinion.  On or prior to the First Delivery Date and within three (3) Trading  Days of each Bring-Down Date with respect to which the Company is obligated to deliver a  certificate in the form attached hereto as Exhibit 7(m) for which no waiver is applicable, the  Company shall cause to be furnished to Cowen a written opinion of Fenwick & West LLP  (collectively with Company IP Counsel (as defined below), “Company Counsel”), or other  counsel satisfactory to Cowen, in form and substance satisfactory to Cowen and its counsel, dated  the date that the opinion is required to be delivered; provided, however, that in lieu of such opinions  for subsequent Bring-Down Dates, counsel may furnish Cowen with a letter (a “Reliance Letter”)  to the effect that Cowen may rely on a prior opinion delivered under this Section 7(n) to the same  extent as if it were dated the date of such letter (except that statements in such prior opinion shall  be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented  at such Bring-Down Date).    (o)  Intellectual Property Opinion.  On or prior to the First Delivery Date and within  three (3) Trading Days of each Bring-Down Date with respect to which the Company is obligated  to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver is  applicable, the Company shall cause to be furnished to Cowen a written opinion of Leydig, Voit &  Mayer, Ltd. (“Company IP Counsel”), or other counsel satisfactory to Cowen, in form and  substance satisfactory to Cowen and its counsel, dated the date that the opinion is required to be  delivered, with respect to intellectual property matters, modified, as necessary, to relate to the  Registration Statement and the Prospectus as then amended or supplemented; provided, however,  that in lieu of such opinions for subsequent Bring-Down Dates, counsel may furnish Cowen with  a Reliance Letter to the effect that Cowen may rely on a prior opinion delivered under this Section  7(o) to the same extent as if it were dated the date of such letter (except that statements in such  prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as  amended or supplemented at such Bring-Down Date).    (p) Comfort Letter.  On or prior to the First Delivery Date and within three (3) Trading  Days of each Bring-Down Date with respect to which the Company is obligated to deliver a  certificate in the form attached hereto as Exhibit 7(m) for which no waiver is applicable, the  Company shall cause its independent accountants to furnish Cowen letters (the "Comfort  Letters"), dated the date the Comfort Letter is delivered, in form and substance satisfactory to  Cowen, (i) confirming that they are an independent registered public accounting firm within the  meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and  findings of such firm with respect to the financial information and other matters ordinarily covered  by accountants’ “comfort letters” to Cowen in connection with registered public offerings (the first  such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any  information that would have been included in the Initial Comfort Letter had it been given on such  





 






 - 26 -    date and modified as necessary to relate to the Registration Statement and the Prospectus, as  amended and supplemented to the date of such letter.  (q) Market Activities.  The Company will not, directly or indirectly, (i) take any action  designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the  stabilization or manipulation of the price of any security of the Company to facilitate the sale or  resale of the Placement Shares or (ii) sell, bid for, or purchase the Common Stock to be issued and  sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the  Placement Shares other than Cowen; provided, however, that the Company may bid for and  purchase shares of its common stock in accordance with Rule 10b-18 under the Exchange Act.  (r)  Insurance.  The Company and its subsidiaries shall maintain, or cause to be  maintained, insurance in such amounts and covering such risks as is reasonable and customary for  the business for which it is engaged.  (s)  Compliance with Laws.  The Company and each of its subsidiaries shall use its  commercially reasonable efforts to maintain, or cause to be maintained, all material environmental  permits, licenses and other authorizations required by federal, state and local law in order to  conduct their businesses as described in the Prospectus, and the Company and each of its  subsidiaries shall conduct their businesses, or cause their businesses to be conducted, in substantial  compliance with such permits, licenses and authorizations and with applicable environmental laws,  except where the failure to maintain or be in compliance with such permits, licenses and  authorizations could not reasonably be expected to result in a Material Adverse Effect.  (t)  Investment Company Act.  The Company will conduct its affairs in such a manner  so as to reasonably ensure that neither it nor its subsidiaries will be or become, at any time prior  to the termination of this Agreement, an “investment company,” as such term is defined in the  Investment Company Act, assuming no change in the Commission’s current interpretation as to  entities that are not considered an investment company.  (u)  Securities Act and Exchange Act.  The Company will use its best efforts to comply  with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to  time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Placement  Shares as contemplated by the provisions hereof and the Prospectus.  (v)  No Offer to Sell.  Other than a Permitted Free Writing Prospectus, neither Cowen  nor the Company (including its agents and representatives, other than Cowen in its capacity as  such) will make, use, prepare, authorize, approve or refer to any written communication (as defined  in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes  an offer to sell or solicitation of an offer to buy Placement Shares hereunder.  (w)  Sarbanes-Oxley Act.  The Company and its subsidiaries will use their commercially  reasonable efforts to comply in all material respects with all effective applicable provisions of the  Sarbanes-Oxley Act.  (x) Affirmation.  Each Placement Notice delivered by the Company to Cowen shall be  deemed to be (i) an affirmation that the representations, warranties and agreements of the Company  herein contained and contained in any certificate delivered to Cowen pursuant hereto are true and  





 






 - 27 -    correct at the time of delivery of such Placement Notice, and (ii) an undertaking that such  representations, warranties and agreements will be true and correct on any applicable Time of Sale  and Settlement Date, as though made at and as of each such time (it being understood that such  representations, warranties and agreements shall relate to the Registration Statement and the  Prospectus as amended and supplemented to the time of such Placement Notice acceptance).  (y) Renewal.    If immediately prior to the third anniversary (the “Renewal Deadline”) of  the initial effective date of the Registration Statement, the aggregate gross sales price of Placement  Shares sold by the Company is less than the Maximum Amount and this Agreement has not expired  or been terminated, the Company may, prior to the Renewal Deadline, file, if it has not already  done so and is eligible to do so, a new shelf registration statement relating to the Placement Shares,  in a form reasonably satisfactory to Cowen, and, if not automatically effective, will use its best  efforts to cause such registration statement to be declared effective within 60 days after the  Renewal Deadline. The Company may take any other action necessary or appropriate to permit the  issuance and sale of the Placement Shares to continue as contemplated in the expired registration  statement relating to the Placement Shares. References herein to the Registration Statement shall  include such new shelf registration statement.    8.   Conditions to Cowen’s Obligations. The obligations of Cowen hereunder with  respect to a Placement Notice will be subject to the continuing accuracy and completeness of the  representations and warranties made by the Company herein, to the due performance by the  Company of its obligations hereunder and thereunder, to the completion by Cowen of a due  diligence review satisfactory to Cowen in its reasonable judgment, and to the continuing  satisfaction (or waiver by Cowen in its sole discretion) of the following additional conditions:  (a)  Registration Statement Effective.  The Registration Statement shall be effective and  shall be available for (i) all sales of Placement Shares issued pursuant to all prior Placement  Notices and (ii) the sale of all Placement Shares contemplated to be issued pursuant to any  Placement Notice.  (b)  No Material Notices.  None of the following events shall have occurred and be  continuing:  (i) receipt by the Company or any of its subsidiaries of any request for additional  information from the Commission or any other federal or state governmental authority during the  period of effectiveness of the Registration Statement, the response to which would require any  post-effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the  issuance by the Commission or any other federal or state governmental authority of any stop order  suspending the effectiveness of the Registration Statement or the initiation of any proceedings for  that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the  qualification or exemption from qualification of any of the Placement Shares for sale in any  jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the  occurrence of any event that makes any material statement made in the Registration Statement or  the Prospectus or any material document incorporated or deemed to be incorporated therein by  reference untrue in any material respect or that requires the making of any changes in the  Registration Statement, related Prospectus or such documents so that, in the case of the  Registration Statement, it will not contain any materially untrue statement of a material fact or  omit to state any material fact required to be stated therein or necessary to make the statements  therein not misleading and, that in the case of the Prospectus, it will not contain any materially  





 






 - 28 -    untrue statement of a material fact or omit to state any material fact required to be stated therein  or necessary to make the statements therein, in the light of the circumstances under which they  were made, not misleading.   (c)  No Misstatement or Material Omission.  Cowen shall not have advised the  Company that the Registration Statement or Prospectus, or any amendment or supplement thereto,  contains an untrue statement of fact that in Cowen’s reasonable opinion is material, or omits to  state a fact that in Cowen’s opinion is material and is required to be stated therein or is necessary  to make the statements therein not misleading.  (d)  Material Changes.  Except as contemplated in the Prospectus, or disclosed in the  Company’s reports filed with the Commission, there shall not have been any Material Adverse  Change, on a consolidated basis, in the authorized capital stock of the Company or any Material  Adverse Change or any development that would reasonably be expected to result in a Material  Adverse Change, or any downgrading in or withdrawal of the rating assigned to any of the  Company’s securities (other than asset backed securities) by any rating organization or a public  announcement by any rating organization that it has under surveillance or review its rating of any  of the Company’s securities (other than asset backed securities), the effect of which, in the case of  any such action by a rating organization described above, in the reasonable judgment of Cowen  (without relieving the Company of any obligation or liability it may otherwise have), is so material  as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on  the terms and in the manner contemplated in the Prospectus.  (e)  Company Counsel Legal Opinion.  Cowen shall have received the opinions of  Company Counsel required to be delivered pursuant to Section 7(n) and Section 7(o) on or before  the date on which such delivery of such opinion is required pursuant to Section 7(n) and Section  7(o).  (f)  Cowen Counsel Legal Opinion.  Cowen shall have received from Mintz, Levin,  Cohn, Ferris, Glovsky and Popeo, P.C., counsel for Cowen, such opinion or opinions, on or before  the date on which the delivery of the Company Counsel legal opinion is required pursuant to  Section 7(n), with respect to such matters as Cowen may reasonably require, and the Company  shall have furnished to such counsel such documents as they request for enabling them to pass  upon such matters.  (g)  Comfort Letter.  Cowen shall have received the Comfort Letter required to be  delivered pursuant to Section 7(p) on or before the date on which such delivery of such Comfort  Letter is required pursuant to Section 7(p).  (h)  Representation Certificate.  Cowen shall have received the certificate required to  be delivered pursuant to Section 7(m) on or before the date on which delivery of such certificate  is required pursuant to Section 7(m).  (i)  Secretary’s Certificate.  On or prior to the First Delivery Date, Cowen shall have  received a certificate, signed on behalf of the Company by its corporate secretary, in form and  substance satisfactory to Cowen and its counsel.  





 






 - 29 -    (j) No Suspension.  Trading in the Common Stock shall not have been suspended on  Nasdaq.  (k)  Other Materials.  On each date on which the Company is required to deliver a  certificate pursuant to Section 7(m), the Company shall have furnished to Cowen such appropriate  further information, certificates and documents as Cowen may have reasonably requested. All such  opinions, certificates, letters and other documents shall have been in compliance with the  provisions hereof. The Company will furnish Cowen with such conformed copies of such opinions,  certificates, letters and other documents as Cowen shall have reasonably requested.  (l)  Securities Act Filings Made.  All filings with the Commission required by Rule 424  under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder  shall have been made within the applicable time period prescribed for such filing by Rule 424.  (m)  Approval for Listing.  The Placement Shares shall either have been (i) approved for  listing on Nasdaq, subject only to notice of issuance, or (ii) the Company shall have filed an  application for listing of the Placement Shares on Nasdaq at, or prior to, the issuance of any  Placement Notice.  (n)  No Termination Event.  There shall not have occurred any event that would permit  Cowen to terminate this Agreement pursuant to Section 11(a).  9.   Indemnification and Contribution.  (a)  Company Indemnification.  The Company agrees to indemnify and hold harmless  Cowen, the directors, officers, partners, employees and agents of Cowen and each person, if any,  who (i) controls Cowen within the meaning of Section 15 of the Securities Act or Section 20 of the  Exchange Act, or (ii) is controlled by or is under common control with Cowen from and against  any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and  all reasonable and documented investigative, legal and other expenses  incurred in connection with,  and any and all amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit  or proceeding between any of the indemnified parties and any indemnifying parties or between  any indemnified party and any third party, or otherwise, or any claim asserted), as and when  incurred, to which Cowen, or any such person, may become subject under the Securities Act, the  Exchange Act or other federal or state statutory law or regulation, at common law or otherwise,  insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or  indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in  the Registration Statement or the Prospectus or any amendment or supplement to the Registration  Statement or the Prospectus or in any free writing prospectus or in any application or other  document executed by or on behalf of the Company in connection with this Agreement or based  on written information furnished by or on behalf of the Company filed in any jurisdiction in order  to qualify the Common Stock under the securities laws thereof or filed with the Commission, or  (y) the omission or alleged omission to state in any such document a material fact required to be  stated in it or necessary to make the statements in it not misleading; provided, however, that this  indemnity agreement shall not apply to the extent that such loss, claim, liability, expense or damage  arises from the sale of the Placement Shares pursuant to this Agreement and is caused directly or  indirectly by an untrue statement or omission, or alleged untrue statement or omission, made in  reliance upon and in conformity with solely Agent’s Information.  “Agent’s Information” means,  





 






 - 30 -    solely, the following information in the Prospectus: the third sentence of the eighth paragraph  under the caption “Plan of Distribution” in the Prospectus.  This indemnity agreement will be in  addition to any liability that the Company might otherwise have.  (b)  Cowen Indemnification. Cowen agrees to indemnify and hold harmless the  Company and its directors and each officer of the Company that signed the Registration Statement,  and each person, if any, who (i) controls the Company within the meaning of Section 15 of the  Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control  with the Company against any and all loss, liability, claim, damage and expense described in the  indemnity contained in Section 9(a), as incurred, but only with respect to untrue statements or  omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any  amendments thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon  and in conformity with the Agent’s Information.  (c)  Procedure.  Any party that proposes to assert the right to be indemnified under this  Section 9 will, promptly after receipt of notice in writing of commencement of any action against  such party in respect of which a claim is to be made against an indemnifying party or parties under  this Section 9, notify each such indemnifying party of the commencement of such action, enclosing  a copy of all papers served, but the omission so to notify such indemnifying party will not relieve  the indemnifying party from (i) any liability that it might have to any indemnified party otherwise  than under this Section 9 and (ii) any liability that it may have to any indemnified party under the  foregoing provision of this Section 9 unless, and only to the extent that, such omission results in  the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is  brought against any indemnified party and it notifies the indemnifying party of its commencement,  the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering  written notice to the indemnified party promptly after receiving notice of the commencement of  the action from the indemnified party, jointly with any other indemnifying party similarly notified,  to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party,  and after notice from the indemnifying party to the indemnified party of its election to assume the  defense, the indemnifying party will not be liable to the indemnified party for any legal or other  expenses except as provided below and except for the reasonable and documented costs of  investigation subsequently incurred by the indemnified party in connection with the defense. The  indemnified party will have the right to employ its own counsel in any such action, but the fees,  expenses and other charges of such counsel will be at the expense of such indemnified party unless  (1) the employment of counsel by the indemnified party has been authorized in writing by the  indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of  counsel) that there may be legal defenses available to it or other indemnified parties that are  different from or in addition to those available to the indemnifying party, (3) a conflict or potential  conflict exists (based on advice of counsel to the indemnified party) between the indemnified party  and the indemnifying party (in which case the indemnifying party will not have the right to direct  the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has  not in fact employed counsel to assume the defense of such action within a reasonable time after  receiving notice of the commencement of the action, in each of which cases the reasonable and  documented fees, disbursements and other charges of counsel will be at the expense of the  indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in  connection with any proceeding or related proceedings in the same jurisdiction, be liable for the  reasonable and documented fees, disbursements and other charges of more than one separate firm  





 






 - 31 -    admitted to practice in such jurisdiction at any one time for all such indemnified party or parties.  All such fees, disbursements and other charges will be reimbursed by the indemnifying party  promptly as they are incurred. An indemnifying party will not, in any event, be liable for any  settlement of any action or claim effected without its written consent.  No indemnifying party shall,  without the prior written consent of each indemnified party, settle or compromise or consent to the  entry of any judgment in any pending or threatened claim, action or proceeding relating to the  matters contemplated by this Section 9 (whether or not any indemnified party is a party thereto),  unless such settlement, compromise or consent includes an unconditional release of each  indemnified party from all liability arising or that may arise out of such claim, action or proceeding.   (d)  Contribution.  In order to provide for just and equitable contribution in  circumstances in which the indemnification provided for in the foregoing paragraphs of this  Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable  from the Company or Cowen, the Company and Cowen will contribute to the total losses, claims,  liabilities, expenses and damages (including any investigative, legal and other expenses reasonably  incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding  or any claim asserted, but after deducting any contribution received by the Company from persons  other than Cowen, such as persons who control the Company within the meaning of the Securities  Act, officers of the Company who signed the Registration Statement and directors of the Company,  who also may be liable for contribution) to which the Company and Cowen may be subject in such  proportion as shall be appropriate to reflect the relative benefits received by the Company on the  one hand and Cowen on the other. The relative benefits received by the Company on the one hand  and Cowen on the other hand shall be deemed to be in the same proportion as the total Net Proceeds  from the sale of the Placement Shares (before deducting expenses) received by the Company bear  to the total compensation received by Cowen from the sale of Placement Shares on behalf of the  Company.  If, but only if, the allocation provided by the foregoing sentence is not permitted by  applicable law, the allocation of contribution shall be made in such proportion as is appropriate to  reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault  of the Company, on the one hand, and Cowen, on the other, with respect to the statements or  omission that resulted in such loss, claim, liability, expense or damage, or action in respect thereof,  as well as any other relevant equitable considerations with respect to such offering. Such relative  fault shall be determined by reference to, among other things, whether the untrue or alleged untrue  statement of a material fact or omission or alleged omission to state a material fact relates to  information supplied by the Company or Cowen, the intent of the parties and their relative  knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Company and Cowen agree that it would not be just and equitable if contributions pursuant to  this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation  that does not take into account the equitable considerations referred to herein. The amount paid or  payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or  action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, for the  purpose of this Section 9(d), any legal or other expenses reasonably incurred by such indemnified  party in connection with investigating or defending any such action or claim to the extent  consistent with Section 9(c) hereof.  Notwithstanding the foregoing provisions of this Section 9(d),  Cowen shall not be required to contribute any amount in excess of the commissions received by it  under this Agreement and no person found guilty of fraudulent misrepresentation (within the  meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person  who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9(d), any  





 






 - 32 -    person who controls a party to this Agreement within the meaning of the Securities Act, and any  officers, directors, partners, employees or agents of Cowen, will have the same rights to  contribution as that party, and each officer of the Company who signed the Registration Statement  and each director of the Company will have the same rights to contribution as the Company,  subject in each case to the provisions hereof. Any party entitled to contribution, promptly after  receipt of notice of commencement of any action against such party in respect of which a claim  for contribution may be made under this Section 9(d), will notify any such party or parties from  whom contribution may be sought, but the omission to so notify will not relieve that party or parties  from whom contribution may be sought from any other obligation it or they may have under this  Section 9(d) except to the extent that the failure to so notify such other party materially prejudiced  the substantive rights or defenses of the party from whom contribution is sought. Except for a  settlement entered into pursuant to the last sentence of Section 9(c) hereof, no party will be liable  for contribution with respect to any action or claim settled without its written consent if such  consent is required pursuant to Section 9(c) hereof.  10.   Representations and Agreements to Survive Delivery.  The indemnity and  contribution agreements contained in Section 9 of this Agreement and all representations and  warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of  their respective dates, regardless of (i) any investigation made by or on behalf of Cowen, any  controlling persons, or the Company (or any of their respective officers, directors or controlling  persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any  termination of this Agreement.  11.   Termination.  (a)  Cowen shall have the right by giving written notice as hereinafter specified at any  time to terminate this Agreement if (i) any Material Adverse Change, or any development that  would reasonably be expected to result in a Material Adverse Change has occurred that, in the  reasonable judgment of Cowen, would materially impair the ability of Cowen to sell the Placement  Shares hereunder, (ii) the Company shall have failed, refused or been unable to perform any  agreement on its part to be performed hereunder, or (iii) any other condition of Cowen’s  obligations hereunder is not fulfilled, or (iv), any suspension or limitation of trading in the  Placement Shares or in securities generally on Nasdaq shall have occurred.  Any such termination  shall be without liability of any party to any other party except that the provisions of Section 7(g)  (Expenses), Section 9 (Indemnification and Contribution), Section 10 (Representations and  Agreements to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and  Section 17 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such  termination. If Cowen elects to terminate this Agreement as provided in this Section 11(a), Cowen  shall provide the required notice as specified in Section 12 (Notices).  (b)  The Company shall have the right, by giving ten (10) days’ notice as hereinafter  specified to terminate this Agreement in its sole discretion at any time after the date of this  Agreement.  Any such termination shall be without liability of any party to any other party except  that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall  remain in full force and effect notwithstanding such termination.  Upon termination of this  Agreement, the Company shall not have any liability to Cowen for any discount, commission, or  other compensation with respect to any Placement Shares not otherwise sold by Cowen under this  





 






 - 33 -    Agreement, or otherwise, except with respect to reimbursement of expenses pursuant to Section  7(g).  (c)  Cowen shall have the right, by giving ten (10) days’ notice as hereinafter specified  to terminate this Agreement in its sole discretion at any time after the date of this Agreement.  Any  such termination shall be without liability of any party to any other party except that the provisions  of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full force  and effect notwithstanding such termination.  (d)  Unless earlier terminated pursuant to this Section 11, this Agreement shall  automatically terminate upon the issuance and sale of all of the Placement Shares through Cowen  on the terms and subject to the conditions set forth herein; provided that the provisions of Section  7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full force and effect  notwithstanding such termination.  (e)  This Agreement shall remain in full force and effect unless terminated pursuant to  Sections 11(a), (b), (c), or (d) above or otherwise by mutual agreement of the parties; provided,  however, that any such termination by mutual agreement shall in all cases be deemed to provide  that Section 7(g), Section 9, Section 10, Section 16 and Section 17 shall remain in full force and  effect.  (f)  Any termination of this Agreement shall be effective on the date specified in such  notice of termination; provided, however, that such termination shall not be effective until the close  of business on the date of receipt of such notice by Cowen or the Company, as the case may be. If  such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such  Placement Shares shall settle in accordance with the provisions of this Agreement.  12.   Notices.  All notices or other communications required or permitted to be given by  any party to any other party pursuant to the terms of this Agreement shall be in writing, unless  otherwise specified in this Agreement, and if sent to Cowen, shall be delivered to Cowen at Cowen  and Company, LLC, 599 Lexington Avenue, New York, NY 10022, fax no. [*], Attention:   General Counsel, email: [*]; or if sent to the Company, shall be delivered to AnaptysBio, Inc.,  10770 Wateridge Circle, Suite 210, San Diego, CA 92121, attention: Eric Loumeau, email: [*],  with a copy to Fenwick & West LLP, attention: Effie Toshav, email: [*]. Each party to this  Agreement may change such address for notices by sending to the parties to this Agreement written  notice of a new address for such purpose.  Each such notice or other communication shall be deemed  given (i) when delivered personally or by verifiable facsimile transmission (with an original to follow)  on or before 4:30 p.m., New York City time, on a Business Day (as defined below), or, if such day is  not a Business Day on the next succeeding Business Day, (ii) on the next Business Day after timely  delivery to a nationally-recognized overnight courier, (iii) on the Business Day actually received if  deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid), and  (iv) when delivered by electronic communication (“Electronic Notice”), at the time the party  sending Electronic Notice receives verification of receipt by the receiving party, other than via  auto reply. For purposes of this Agreement, “Business Day” shall mean any day on which the Nasdaq  and commercial banks in the City of New York are open for business.  13.   Successors and Assigns.  This Agreement shall inure to the benefit of and be  binding upon the Company and Cowen and their respective successors and the affiliates,  





 






 - 34 -    controlling persons, officers and directors referred to in Section 9 hereof. References to any of the  parties contained in this Agreement shall be deemed to include the successors and permitted  assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any  party other than the parties hereto or their respective successors and permitted assigns any rights,  remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided  in this Agreement. Neither party may assign its rights or obligations under this Agreement without  the prior written consent of the other party; provided, however, that Cowen may assign its rights and  obligations hereunder to an affiliate of Cowen without obtaining the Company’s consent.  14.   Adjustments for Share Splits.  The parties acknowledge and agree that all share- related numbers contained in this Agreement shall be adjusted to take into account any share split,  share dividend or similar event effected with respect to the Common Stock.  15.   Entire Agreement; Amendment; Severability.  This Agreement (including all  schedules and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes  the entire agreement and supersedes all other prior and contemporaneous agreements and  undertakings, both written and oral, among the parties hereto with regard to the subject matter  hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written  instrument executed by the Company and Cowen.  In the event that any one or more of the provisions  contained herein, or the application thereof in any circumstance, is held invalid, illegal or  unenforceable as written by a court of competent jurisdiction, then such provision shall be given  full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the  remainder of the terms and provisions herein shall be construed as if such invalid, illegal or  unenforceable term or provision was not contained herein, but only to the extent that giving effect  to such provision and the remainder of the terms and provisions hereof shall be in accordance with  the intent of the parties as reflected in this Agreement.  16.   Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by,  and construed in accordance with, the internal laws of the State of New York without regard to the  principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive  jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for  the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby,  and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim  that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding  is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.   Each party hereby irrevocably waives personal service of process and consents to process being  served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail,  return receipt requested) to such party at the address in effect for notices to it under this Agreement  and agrees that such service shall constitute good and sufficient service of process and notice thereof.   Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner  permitted by law.  17.   Waiver of Jury Trial.  The Company and Cowen each hereby irrevocably waives  any right it may have to a trial by jury in respect of any claim based upon or arising out of this  Agreement or any transaction contemplated hereby.  18.   Absence of Fiduciary Relationship.  The Company acknowledges and agrees that:  





 






 - 35 -    (a)  Cowen has been retained solely to act as an arm’s length contractual counterparty  to the Company in connection with the sale of the Placement Shares contemplated hereby and that  no fiduciary, advisory or agency relationship between the Company and Cowen has been created  in respect of any of the transactions contemplated by this Agreement, irrespective of whether  Cowen has advised or is advising the Company on other matters;  (b)  the Company is capable of evaluating and understanding and understands and  accepts the terms, risks and conditions of the transactions contemplated by this Agreement;  (c)  the Company has been advised that Cowen and its affiliates are engaged in a broad  range of transactions which may involve interests that differ from those of the Company and that  Cowen has no obligation to disclose such interests and transactions to the Company by virtue of  any fiduciary, advisory or agency relationship; and  (d)  the Company waives, to the fullest extent permitted by law, any claims it may have  against Cowen, for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that  Cowen shall have no liability (whether direct or indirect) to the Company in respect of such a  fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right of the  Company, including stockholders, partners, employees or creditors of the Company.  19.   Counterparts.  This Agreement may be executed in two or more counterparts, each  of which shall be deemed an original, but all of which together shall constitute one and the same  instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile  or electronic transmission.      [Remainder of Page Intentionally Blank]  





 






    If the foregoing correctly sets forth the understanding between the Company and Cowen,  please so indicate in the space provided below for that purpose, whereupon this letter shall  constitute a binding agreement between the Company and Cowen.    Very truly yours,    COWEN AND COMPANY, LLC      By: /s/ Michael Murphey_______________________   Name:  Michael Murphey   Title:  Managing Director        ACCEPTED as of the date  first-above written:    ANAPTYSBIO, INC.      By:  /s/ Daniel Faga__________________________  Name:  Daniel Faga  Title:  Interim President & Chief Executive Officer                                              





 






    SCHEDULE 1  FORM OF PLACEMENT NOTICE    From: [                               ]  Cc: [                               ]  To:  [    ]  Subject:  Cowen At the Market Offering—Placement Notice  Gentlemen:  Pursuant to the terms and subject to the conditions contained in the Sales Agreement between  AnaptysBio, Inc. (the “Company”), and Cowen and Company, LLC (“Cowen”) dated  November 8, 2022 (the “Agreement”), I hereby request on behalf of the Company that Cowen sell  up to [  ] shares of the Company’s common stock, par value $0.001 per share, at a minimum market  price of $[__] per share.  Sales should begin on the date of this Notice and shall continue until  [DATE] [all shares are sold].    





 






    SCHEDULE 2    Notice Parties  Company  Dan Faga  Chief Executive Officer  Dennis Mulroy Chief Financial Officer  Eric Loumeau  Chief Operating Officer and General Counsel      Cowen  Michael J. Murphy Managing Director  William Follis  Managing Director        





 






    SCHEDULE 3    Compensation  Cowen shall be paid compensation equal to up to 3% of the gross proceeds from the sales of  Common Stock pursuant to the terms of this Agreement.      





 






      Exhibit 7(m)         OFFICER CERTIFICATE      The undersigned, the duly qualified and elected _______________________, of AnaptysBio, Inc.  (“Company”), a Delaware corporation, does hereby certify in such capacity and on behalf of the  Company, pursuant to Section 7(m) of the Sales Agreement dated November 8, 2022 (the “Sales  Agreement”) between the Company and Cowen and Company, LLC, that to the best of the  knowledge of the undersigned.  Capitalized terms used but not defined herein shall have the  meanings given to them in the Sales Agreement.     (i) The representations and warranties of the Company in Section 6 of the Sales  Agreement (A) to the extent such representations and warranties are subject to qualifications and  exceptions contained therein relating to materiality or Material Adverse Change, are true and  correct on and as of the date hereof with the same force and effect as if expressly made on and as  of the date hereof, except for those representations and warranties that speak solely as of a specific  date and which were true and correct as of such date, and (B) to the extent such representations  and warranties are not subject to any qualifications or exceptions, are true and correct in all  material respects as of the date hereof as if made on and as of the date hereof with the same force  and effect as if expressly made on and as of the date hereof except for those representations and  warranties that speak solely as of a specific date and which were true and correct as of such date;  and  (ii) The Company has complied with all agreements and satisfied all conditions on its  part to be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.  Each of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and Fenwick & West LLP  are entitled to rely upon this Certificate in connection with the opinions given by such firms  pursuant to the Sales Agreement.            By:        Name:  Title:      Date: