Exhibit 10.1


 


Jasper Therapeutics, Inc.

Shares of Voting Common Stock


(par value $0.0001 per share)


 


Controlled Equity OfferingSM


 


Sales Agreement


 


November 10, 2022


 


Cantor Fitzgerald & Co.


499 Park Avenue


New York, NY 10022


 


Ladies and Gentlemen:


 


Jasper Therapeutics, Inc.,
a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with Cantor Fitzgerald & Co. (the “Agent”), 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 or to the Agent, as sales agent or principal, shares of voting common stock
(the “Placement Shares”) of the Company, par value $0.0001 per share (the “Common Stock”);
provided, however, that in no event shall the Company issue or sell through or to the Agent such number or dollar amount
of Placement Shares that would (a) exceed the number or dollar amount of shares of Common Stock registered on the effective Registration
Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued shares of Common
Stock (less shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise
reserved from the Company’s authorized capital stock), (c) exceed the number or dollar amount of shares of Common Stock permitted
to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of shares
of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum
Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations
set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility
of the Company and that the Agent shall have no obligation in connection with such compliance; provided the Agent follows the trading
instructions provided by the Company pursuant to any Placement Notice in all material respects. The offer and sale of Placement Shares
through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which was declared
effective by the Securities and Exchange Commission (the “Commission”) on October 18, 2022, although nothing
in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Common Stock.


 


The Company has filed, in
accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), and the rules
and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement
on Form S-3 (File No. 333-267777), including a base prospectus, relating to certain securities, including the Placement Shares 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 (the “Exchange Act”), and the rules and
regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the
registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the
Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of
the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement
Shares to be issued from time to time by the Company. Except where the context otherwise requires, such registration statement(s), including
all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as
defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be
a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, and any one or more additional effective
registration statements on Form S-3 from time to time that will contain a base prospectus and related prospectus or prospectus supplement,
if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares, is herein called the “Registration
Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included
in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus
or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b)
under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called
the “Prospectus.”


 


Any reference herein to the
Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus (defined below), and any amendments
and supplements thereto, shall be deemed to refer to and include the documents, if any, incorporated by reference therein (the “Incorporated
Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to
the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement,
or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein
by reference. 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 the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval system, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).


 






     


     


    

 


2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify the Agent by email notice (or other method mutually agreed to by the parties) of the number 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
day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which is attached
hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule
3 (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 the Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice shall
be effective unless and until (i) the Agent declines in writing to accept the terms contained therein for any reason, in its sole
discretion, in which case the Agent shall, within three (3) Trading Days (as defined below) of the receipt of such Placement Notice, notify
the Company (by e-mail notice or other method mutually agreed to by the parties), (ii) the entire amount of the Placement Shares
thereunder have been sold, (iii) the Company suspends or terminates the Placement Notice or (iv) this Agreement has been terminated
under the provisions of Section 12. The amount of any discount, commission or other compensation to be paid by the Company to the
Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2.
It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement
or any Placement Shares unless and until the Company delivers a Placement Notice to the Agent and the Agent 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 the Agent. Subject to the provisions of Section 5(a), the Agent, 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 Capital Market (the “Exchange”), to sell the Placement
Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Agent will provide written
confirmation to the Company no later than the opening of the Trading Day 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 compensation payable by the Company to
the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with
an itemization of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from
such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement Shares by any method permitted by law deemed to
be an “at the market offering” as defined in Rule 415(a)(4) of the Securities Act Regulations. “Trading Day”
means any day on which Common Stock is traded on the Exchange.


 


4. Suspension
of Sales. The Company or the Agent 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 3, 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 3), suspend any sale of Placement Shares
(a “Suspension”); provided, however, that such Suspension shall not affect or impair any 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
obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates, opinions, or comfort
letters to the Agent, shall be waived. Each of the parties agrees that no such notice under this Section 4 shall be effective against
any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time
to time. Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public
information, the Company and the Agent agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request
the sale of any Placement Shares, and (iii) the Agent shall not be obligated to sell or offer to sell any Placement Shares.


 


5. Sale
and Delivery to the Agent; Settlement.


 


(a) Sale
of Placement Shares.  On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Agent’s acceptance of the terms 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, the Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable laws and regulations to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the
terms of, such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful
in selling Placement Shares, (ii) the Agent 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 the Agent to use its commercially reasonable efforts consistent with
its normal trading and sales practices and applicable laws and regulations to sell such Placement Shares as required under this Agreement
and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except
as otherwise agreed by the Agent and the Company.


 






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(b) 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”). The Agent shall notify the Company of each sale of Placement
Shares no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement Shares
hereunder. 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 the Agent, after deduction for (i) the
Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and
(ii) any transaction fees imposed by any Governmental Authority (as defined below) in respect of such sales.


 


(c)
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 the Agent’s or its designee’s account (provided the Agent shall have
given the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company
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 tradable, transferable, registered shares in good deliverable form. On each Settlement Date,
the Agent 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 Placement Shares
on a Settlement Date through no fault of the Agent, in addition to and in no way limiting the rights and obligations set forth in Section
10(a) hereto, it will (i) hold the Agent 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 or its
transfer agent (if applicable) and (ii) pay to the Agent (without duplication) any commission, discount, or other compensation to which
it would otherwise have been entitled absent such default.


 


(d) Denominations;
Registration. The Company and the Agent acknowledge and agree that the Placement Shares shall, unless agreed by the Company
and as required by applicable Laws, not be issued in certificated form. Certificates for the Placement Shares, if any, shall be in such
denominations and registered in such names as the Agent may request in writing at least one full Business Day (as defined below) before
the applicable Settlement Date. The certificates for the Placement Shares, if any, will be made available by the Company for examination
and packaging by the Agent in The City of New York not later than noon (New York time) on the Business Day prior to the applicable
Settlement Date.


 


(e) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount and (B) the
amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized
committee thereof or a duly authorized executive committee, and notified to the Agent in writing. Under no circumstances shall the Company
cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized
from time to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee.
Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares sold pursuant to this
Agreement to exceed the Maximum Amount.


 


6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with the Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below):


 


(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the applicable conditions set forth in Form S-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration
Statement has been filed with the Commission and has been declared effective by the Commission under the Securities Act. The Prospectus
Supplement will name the Agent as the agent in the section entitled “Plan of Distribution.” The Company has not received,
and has no notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting
proceedings for that purpose. The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements
of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements
and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement have
been delivered, or are available through EDGAR, to the Agent and its counsel. The Company has not distributed and, prior to the later
to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering material
in connection with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer
Free Writing Prospectus to which the Agent has consented, any such consent not to be unreasonably conditioned, withheld or delayed. The
Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently listed on the Exchange under the trading symbol
“JSPR.” The Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act, delisting the Common Stock from the Exchange, nor has the Company received any notification
that the Commission or the Exchange is contemplating terminating such registration or listing. To the Company’s knowledge, it is
in compliance with all applicable listing requirements of the Exchange.


 






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(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or
supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with
the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, on the date thereof
and at each Applicable Time (defined below), did not or will not include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The documents
incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated by
reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material
fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Agent in writing specifically for use in the preparation thereof,
it being understood and agreed that the only such information furnished by the Agent to the Company consists of “Agent Information”
as defined below.


 


(c) Conformity
with the Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are filed with the Commission under the Securities Act or the Exchange Act or became or become effective
under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable.


 


(d) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement,
the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present fairly, in all
material respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated
and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified
and have been prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with U.S. Generally
Accepted Accounting Principles (“GAAP”) applied on a consistent basis during the periods involved; the other
financial and statistical data with respect to the Company and the Subsidiaries (as defined below) contained or incorporated by reference
in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented in
all material respects and prepared on a basis consistent with the financial statements and books and records of the Company; there are
no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement,
or the Prospectus that are not included or incorporated by reference as required; the Company and the Subsidiaries (as defined below)
do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described
in the Registration Statement (excluding the exhibits thereto), and the Prospectus; and all disclosures contained or incorporated by reference
in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange
Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. 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 has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.


 


(e) Conformity
with EDGAR Filing. The Prospectus delivered to the Agent for use in connection with the sale of the Placement Shares pursuant to this
Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T.


 


(f) Organization.
The Company and each of its Subsidiaries are duly organized, validly existing as a corporation and in good standing under the laws of
their respective jurisdictions of organization. The Company and each of its Subsidiaries are duly licensed or qualified as a foreign corporation
for transaction of business and in good standing under the laws of each other jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such license or qualification, and have all corporate power and authority
necessary to own or hold their respective properties and to conduct their respective businesses as described in the Registration Statement
and the Prospectus, except where the failure to be so qualified or in good standing or have such power or authority would not, individually
or in the aggregate, have a material adverse effect or would reasonably be expected to have a material adverse effect on or affecting
the assets, business, operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results
of operations of the Company and the Subsidiaries taken as a whole, or prevent or materially interfere with consummation of the transactions
contemplated hereby (a “Material Adverse Effect”).


 






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(g) Subsidiaries.
The subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”) are the Company’s only
significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission). Except as set forth in
the Registration Statement and in the Prospectus, the Company owns, directly or indirectly, all of the equity interests of the Subsidiaries
free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests
of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. No Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s
capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.


 


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


 


(i) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein), there has not been
(i) any Material Adverse Effect or the occurrence of any development that the Company reasonably expects will result in a Material Adverse
Effect, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability,
direct or contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is material to the
Company and the Subsidiaries taken as a whole, (iv) any material change in the capital stock or outstanding long-term indebtedness of
the Company or any of its Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the capital stock of
the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in the Registration
Statement or Prospectus (including any document deemed incorporated by reference therein).


 


(j) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and nonassessable and, other
than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration Statement and the
Prospectus as of the dates referred to therein (other than the grant of additional options, restricted stock or restricted stock units
or other equity awards under the Company’s existing equity incentive plans, or changes in the number of outstanding shares of Common
Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof) and such authorized capital stock conforms to the description thereof set forth in the Registration
Statement and the Prospectus. The description of the securities of the Company in the Registration Statement and the Prospectus is complete
and accurate in all material respects. Except as disclosed in or contemplated by the Registration Statement or the Prospectus, as of the
date referred to therein, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, or
any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital
stock or other securities.


 


(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and
delivery by the Agent, is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms,
except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable principles, and (ii) the indemnification and contribution provisions of Section
10 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof.


 






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(l) Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein,
will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued, will conform in all material
respects to the description thereof set forth in or incorporated into the Prospectus.


 


(m) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Authority
is required for the execution, delivery and performance by the Company of this Agreement, the issuance and sale by the Company of the
Placement Shares as contemplated hereby, except for such consents, approvals, authorizations, orders and registrations or qualifications
as may be required under applicable state securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”)
or the Exchange in connection with the sale of the Placement Shares by the Agent.


 


(n) No
Preferential Rights. Except as set forth in the Registration Statement and the Prospectus, (i) no person, as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has the right, contractual
or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other capital stock or other securities
of the Company (other than upon the exercise of options or warrants to purchase Common Stock, upon the exercise or vesting of options
or other equity awards that may be granted from time to time under the Company’s equity compensation plans or upon the conversion
of non-voting common stock to Common Stock), (ii) no Person has any preemptive rights, resale rights, rights of first refusal, rights
of co-sale, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase from the Company
any Common Stock or shares of any other capital stock or other securities of the Company (other than upon the exercise of options or warrants
to purchase Common Stock, upon the exercise or vesting of options or other equity awards that may be granted from time to time under the
Company’s equity compensation plans or upon the conversion of non-voting common stock to Common Stock), (iii)  no Person has
the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Placement Shares,
and (iv) no Person has the right, contractual or otherwise, to require the Company to register under the Securities Act any Placement
Shares or shares of any other capital stock or other securities of the Company, or to include any such shares or other securities in the
Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement
or the sale of the Placement Shares as contemplated thereby or otherwise.


 


(o) Independent
Public Accounting Firm. PricewaterhouseCoopers LLP (the “Accountant”), whose report on the consolidated
financial statements of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K
filed with the Commission and incorporated by reference into the Registration Statement and the Prospectus, is and, during the periods
covered by its report, was, an independent registered public accounting firm within the meaning of the Securities Act and the Public Company
Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of the auditor independence
requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.


 


(p) Enforceability
of Agreements. To the Company’s knowledge, all agreements between the Company and third parties expressly referenced in the
Prospectus, other than such agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company
on EDGAR, are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except to the
extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements may be limited
by federal or state securities laws or public policy considerations in respect thereof.


 


(q) No
Litigation. Except as set forth in the Registration Statement or the Prospectus, there are no actions, suits or proceedings by or
before any Governmental Authority pending, nor, to the Company’s knowledge, any audits or investigations by or before any Governmental
Authority to which the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject
that, individually or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, would have a Material Adverse
Effect and, to the Company’s knowledge, no such actions, suits, proceedings, audits or investigations are threatened or contemplated
by any Governmental Authority or threatened by others; and (i) there are no current or pending audits or investigations, actions,
suits or proceedings by or before any Governmental Authority that are required under the Securities Act to be described in the Prospectus
that are not so described; and (ii) there are no contracts or other documents that are required under the Securities Act to be filed
as exhibits to the Registration Statement that are not so filed.


 






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(r) Consents
and Permits. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries have made all
filings, applications and submissions required by, possess and are operating in compliance with, all approvals, licenses, certificates,
certifications, clearances, consents, grants, exemptions, marks, notifications, orders, permits and other authorizations issued by, the
appropriate federal, state or foreign Governmental Authority (including, without limitation, the United States Food and Drug Administration
(the “FDA”), the United States Drug Enforcement Administration or any other foreign, federal, state, provincial,
court or local government or regulatory authorities, including self-regulatory organizations engaged in the regulation of clinical trials,
pharmaceuticals, biologics or biohazardous substances or materials) necessary for the ownership or lease of their respective properties
or to conduct their businesses as described in the Registration Statement and the Prospectus (collectively, “Permits”),
except for such Permits the failure of which to possess, obtain or make the same would not have a Material Adverse Effect; the Company
and its Subsidiaries are in compliance with the terms and conditions of all such Permits, except where the failure to be in compliance
would not have a Material Adverse Effect; all of the Permits are valid and in full force and effect, except where any invalidity, individually
or in the aggregate, would not be reasonably expected to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries
has received any written notice relating to the limitation, revocation, cancellation, suspension, modification or non-renewal of any such
Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse
Effect, or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.
To the extent required by applicable laws and regulations of the FDA, the Company or the applicable Subsidiary has submitted to the FDA
an Investigational New Drug Application or amendment or supplement thereto for each clinical trial it has conducted or sponsored or is
conducting or sponsoring; all such submissions were in material compliance with applicable laws and rules and regulations when submitted
and no material deficiencies have been asserted by the FDA with respect to any such submissions.


 


(s) Regulatory
Filings. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries has
failed to file with the applicable Governmental Authorities (including, without limitation, the FDA, or any foreign, federal, state, provincial
or local Governmental Authority performing functions similar to those performed by the FDA) any required filing, declaration, listing,
registration, report or submission, except for such failures that, individually or in the aggregate, would not have a Material Adverse
Effect; except as disclosed in the Registration Statement and the Prospectus, all such filings, declarations, listings, registrations,
reports or submissions were in compliance with applicable laws when filed and no deficiencies have been asserted by any applicable regulatory
authority with respect to any such filings, declarations, listings, registrations, reports or submissions, except for any deficiencies
that, individually or in the aggregate, would not have a Material Adverse Effect. The Company has operated and currently is, in all material
respects, in compliance with the United States Federal Food, Drug, and Cosmetic Act, all applicable rules and regulations of the FDA and
other federal, state, local and foreign Governmental Authority exercising comparable authority. The Company has no knowledge of any studies,
tests or trials not described in the Prospectus the results of which reasonably call into question in any material respect the results
of the studies, tests and trials described in the Prospectus.


 


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


 






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


 


(v) Market
Capitalization. At the time the Registration Statement was originally declared effective, and at the time the Company’s next
Annual Report on Form 10-K will be filed with the Commission, the Company met or will meet the then applicable requirements for the use
of Form S-3 under the Securities Act, including, but not limited to, General Instruction I.B.6 of Form S-3. The aggregate market value of
the outstanding voting and non-voting common equity (as defined in Securities Act Rule 405) of the Company held by persons other than
affiliates of the Company (pursuant to Securities Act Rule 144, those that directly, or indirectly through one or more intermediaries,
control, or are controlled by, or are under common control with, the Company)  (the “Non-Affiliate Shares”),
was equal to or greater than $46.9 million (calculated by multiplying (x) the highest price at which the common equity of the Company
closed on the Exchange within 60 days of the date of this Agreement times (y) the number of Non-Affiliate Shares). The Company is not
a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously
and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6 of Form
S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.


 


(w) FINRA
Matters. The information provided to the Agent by the Company is true, complete, and correct, and the information provided to the
Agent by the Company’s counsel, officers and directors for purposes of the Agent’s compliance with applicable FINRA rules
in connection with the offering of the Placement Shares is, to the Company’s knowledge, true, complete, and correct.


 


(x) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect.
The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report on
Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has
defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually
or in the aggregate, would have a Material Adverse Effect.


 


(y) Certain
Market Activities. Neither the Company, nor any of the Subsidiaries, nor to the Company’s knowledge, any of their respective
directors, officers or controlling persons has taken, directly or indirectly, any action designed to, or that has constituted, or would
reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Placement Shares.


 


(z) Broker/Dealer
Relationships. Neither the Company nor any of the Subsidiaries (i) is required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls
or is a “person associated with a member” or “associated person of a member” (within the meaning set forth in
the FINRA Manual).


 


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


 


(bb) Taxes. The Company
and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed and paid
all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in good faith,
except where the failure to so file or pay would not have a Material Adverse Effect. Except as otherwise disclosed in or contemplated
by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company or any of its Subsidiaries
which has had, or would have, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal,
state or other governmental tax deficiency, penalty or assessment which has been or might be asserted or threatened against it which would
have a Material Adverse Effect.


 






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(cc) Title to Real and
Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries have good
and marketable title in fee simple to all items of real property owned by them, good and valid title to all personal property described
in the Registration Statement or Prospectus as being owned by them, in each case free and clear of all liens, encumbrances and claims,
except those matters that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and
any of its Subsidiaries or (ii) would not, individually or in the aggregate, have a Material Adverse Effect. Any real or personal property
described in the Registration Statement or Prospectus as being leased by the Company and any of its Subsidiaries is held by them under
valid, existing and enforceable leases, except those that (A) do not materially interfere with the use made or proposed to be made of
such property by the Company or any of its Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate, to
have a Material Adverse Effect. Each of the properties of the Company and its Subsidiaries complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access to such properties),
except if and to the extent disclosed in the Registration Statement or Prospectus or except for such failures to comply that would not,
individually or in the aggregate, reasonably be expected to interfere in any material respect with the use made and proposed to be made
of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or its subsidiaries
has received from any Governmental Authorities any notice of any condemnation of, or zoning change affecting, the properties of the Company
and its Subsidiaries, and the Company knows of no such condemnation or zoning change which is threatened, except for such that would not
reasonably be expected to interfere in any material respect with the use made and proposed to be made of such property by the Company
and its Subsidiaries or otherwise have a Material Adverse Effect, individually or in the aggregate.


 


(dd) Environmental Laws.
Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries (i) are in compliance with
any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders 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) have received and are in compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses as described in the Registration Statement and the Prospectus; and
(iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release
of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above,
for any such failure to comply or failure to receive required permits, licenses, other approvals or liability as would not, individually
or in the aggregate, have a Material Adverse Effect.


 


(ee) Disclosure Controls.
The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company’s internal control over financial reporting is effective as of the latest date of management’s evaluation of such
internal control over financial reporting, and the Company is not aware of any material weaknesses in its internal control over financial
reporting (other than as set forth in the Prospectus). Since the date of the latest audited financial statements of the Company included
in the Prospectus, there has been 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 (other than as set forth in
the Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for
the Company and designed such disclosure controls and procedures to ensure that material information relating to the Company and each
of its Subsidiaries is made known to the certifying officers by others within those entities, particularly during the period in which
the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s
certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as of a date within 90
days prior to the filing date of the Annual Report on Form 10-K for the fiscal year most recently ended (such date, the “Evaluation
Date”). The Company presented in its Annual Report on Form 10-K for the fiscal year most recently ended the conclusions
of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation
Date and the disclosure controls and procedures are effective. Since the Evaluation Date, there have been no significant changes in the
Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s
knowledge, in other factors that could significantly affect the Company’s internal controls.


 


(ff) Sarbanes-Oxley.
There is and has been no failure on the part of the Company or, to the Company’s knowledge, any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act
and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer of the
Company (or each former principal executive officer of the Company and each former principal financial officer of the Company as applicable)
has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms,
statements and other documents required to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence,
“principal executive officer” and “principal financial officer” shall have the meanings given to such terms in
the Sarbanes-Oxley Act.


 






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(gg) Finder’s Fees.
Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions or similar
payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to the Agent pursuant to
this Agreement.


 


(hh) Labor Disputes.
No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company,
is threatened which would result in a Material Adverse Effect.


 


(ii) Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares, will be an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).


 


(jj) Operations. The
operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record
keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority (collectively, the “Money
Laundering Laws”); and no action, suit or proceeding by or before any Governmental Authority involving the Company or any
of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.


 


(kk) Off-Balance Sheet
Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or any of its
affiliates and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or limited purpose entity
(each, an “Off-Balance Sheet Transaction”) that could reasonably be expected to affect materially the Company’s
liquidity or the availability of or requirements for its capital resources, including those Off-Balance Sheet Transactions described in
the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of Operations (Release
Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which have not been described as required.


 


(ll) Underwriter 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.


 


(mm) ERISA. To the
knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company or any
of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained in material compliance
with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and
the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to the Company with respect
to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and for each such plan that is subject
to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such plan (excluding
for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.


 


(nn) Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) (a “Forward-Looking
Statement”) contained in the Registration Statement and the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.


 


(oo) Agent
Purchases. The Company acknowledges and agrees that the Agent has informed the Company that the Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect, provided,
that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent the Agent may engage in
sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity)
and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agent.


 


(pp) Margin Rules.
Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System
or any other regulation of such Board of Governors.


 






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(qq) Insurance. The
Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and each
of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies engaged in similar
businesses in similar industries.


 


(rr) No Improper Practices.
(i) Neither the Company nor the Subsidiaries, nor, to the Company’s knowledge, any of their respective directors, officers,
employees, agents, affiliates or other person acting on behalf of the Company or any Subsidiary has, in the past five years, made any
unlawful contributions to any candidate for any political office (or failed fully to disclose any contribution in violation of applicable
law) or made any contribution or other payment to any official of, or candidate for, any federal, state, municipal, or foreign office
or other person charged with similar public or quasi-public duty in violation of any applicable law or of the character required to be
disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists between or among the Company or any Subsidiary or any
affiliate of any of them, on the one hand, and the directors, officers and stockholders of the Company or any Subsidiary, on the other
hand, that is required by the Securities Act to be described in the Registration Statement and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among the Company or any Subsidiary or any affiliate of them, on the
one hand, and the directors, officers, or stockholders of the Company or any Subsidiary, on the other hand, that is required by the rules
of FINRA to be described in the Registration Statement and the Prospectus that is not so described; (iv) except as described in the
Registration Statement and the Prospectus, there are no material outstanding loans or advances or material guarantees of indebtedness
by the Company or any Subsidiary to or for the benefit of any of their respective officers or directors or any of the members of the families
of any of them; (v) the Company has not offered, or caused any placement agent to offer, Common Stock to any person with the intent to
influence unlawfully (A) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s
level or type of business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish favorable
information about the Company or any Subsidiary or any of their respective products or services; and (vi) neither the Company nor any
Subsidiary nor, to the Company’s knowledge, any of their respective directors, officers, employees agents, affiliates or other person
acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any applicable provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law (collectively, “Anti-Corruption
Laws”), (B) promised, offered, provided, attempted to provide or authorized the provision of anything of value, directly
or indirectly, to any person for the purpose of obtaining or retaining business, influencing any act or decision of the recipient, or
securing any improper advantage; or (C) made any payment of funds of the Company or any Subsidiary or received or retained any funds in
violation of any Anti-Corruption Laws.


 


(ss) Reserved.


 


(tt) No Misstatement or
Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of each Applicable
Time (as defined in Section 23 below), did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document deemed to
be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Agent specifically
for use therein.


 


(uu) No Conflicts.
Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation of any of the
transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and thereof will
conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default under,
or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the property or
assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts, breaches
and defaults that would not have a Material Adverse Effect; nor will such action result (x) in any violation of the provisions of the
organizational or governing documents of the Company, or (y) in any violation of the provisions of any statute or any order, rule or regulation
applicable to the Company or of any Governmental Authority having jurisdiction over the Company, except with respect to this clause (y)
only, where such violation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(vv)  Sanctions.
(i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”)
or, to the knowledge of the Company, any director, officer, employee, agent, affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph (vv), “Person”) that is, or is owned or controlled by a Person that
is:


 


(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authorities, including,
without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions
Evaders List (as amended, collectively, “Sanctions”), nor


 






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(B) located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or
territory (including, without limitation, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the
so-called Luhansk People’s Republic and the Crimea Region of the Ukraine) (the “Sanctioned Countries”).


 


 (ii) The
Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other Person:


 


(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions or is a Sanctioned Country; or


 


(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).


 


 (iii) The
Entity represents and covenants that, except as disclosed in the Registration Statement and the Prospectus, for the past 5 years, it has
not engaged in, is not now engaging in, and will not engage in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned Country.


 


(ww) Stock Transfer Taxes.
On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided for by the Company
and all laws imposing such taxes will be or will have been fully complied with in all material respects.


 


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


 


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


 


(zz) Cybersecurity.
Except as would not have a Material Adverse Effect, the Company and its subsidiaries’ information technology assets and equipment,
computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”)
are adequate for, and operate and perform in all respects as required in connection with the operation of the business of the Company
as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants.
The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls,
policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation,
redundancy and security of all IT Systems and data, including all “Personal Data” (defined below) and all sensitive, confidential
or regulated data (“Confidential Data”) used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification
number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any
information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended;
(iii) “personal data” as defined by the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679); (iv) any information which would qualify as “protected health information” under the Health Insurance Portability
and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
(v) any “personal information” as defined by the California Consumer Privacy Act (“CCPA”); and (vi)
any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any data related to an identified person’s health or sexual orientation. Except as has been disclosed in the Registration
Statement and the Prospectus, to the knowledge of the Company, there have been no breaches, violations, outages or unauthorized uses of
or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems, Confidential
Data, and Personal Data and to the protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access,
misappropriation or modification.


 






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(aaa) Compliance with
Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable state
and federal data privacy and security laws and regulations, including without limitation HIPAA, CCPA, and the GDPR (collectively, the
“Privacy Laws”). To ensure compliance with the Privacy Laws, the Company has in place, complies with, and takes
appropriate steps to ensure compliance in all material respects with their policies and procedures relating to data privacy and security
and the collection, storage, use, processing, disclosure, handling, and analysis of Personal Data and Confidential Data (the “Policies”).
The Company has at all times made all disclosures to users or customers required by applicable laws and regulatory rules or requirements,
except where such failure would not result, individually or in the aggregate, in a Material Adverse Effect, and 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 written notice of any actual or potential
liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation,
remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes
any obligation or liability under any Privacy Law.


 


(bbb) Emerging Growth
Company Status. From the time of the initial filing of the Company’s first registration statement with the Commission through
the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act
(an “Emerging Growth Company”).


 


Any certificate signed by
an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set forth therein.


 


7. Covenants
of the Company. The Company covenants and agrees with the Agent 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 the Agent under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agent promptly of the time when any
subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare
and file with the Commission, promptly upon the Agent’s request, any amendments or supplements to the Registration Statement or
Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement
Shares by the Agent (provided, however, that the failure of the Agent to make such request shall not relieve the Company
of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the
Company in this Agreement and provided, further, that the only remedy the Agent 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 relating to the Placement Shares or a security convertible
into the Placement Shares unless a copy thereof has been submitted to the Agent within a reasonable period of time before the filing and
the Agent has not reasonably objected thereto in writing within two (2) Business Days (provided, however, that (A) the failure
of the Agent to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s
right to rely on the representations and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide
the Agent any advance copy of such filing or to provide the Agent an opportunity to object to such filing if such filing does not name
the Agent or does not relate to the transactions contemplated hereunder, and provided, further, that the only remedy the
Agent shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement)
and the Company will furnish to the Agent 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; and (iv) the Company
will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph
of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission
as required pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment or supplement
with the Commission under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be
made exclusively by the Company); provided, however, that the Company may delay any such amendment or supplement if, in
the reasonable judgment of the Company, it is in the best interests of the Company to do so. Until such time as the Company has corrected
such statement or omission or effected such compliance, the Company shall not notify the Agent to resume the offering of Placement Shares.


 


(b) Notice
of Commission Stop Orders. The Company will advise the Agent, 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. The Company will advise the Agent promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.


 






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(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares,(including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), 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 (taking into
account any extensions available under the Exchange Act) 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 the Company has omitted any information from the Registration Statement pursuant to Rule 430B under the Securities Act, it will
use its commercially reasonable efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to
said Rule 430B and to notify the Agent promptly of all such filings. 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 the Agent 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 reasonable judgment of the Company, it is in the best interests
of the Company to do so. Until such time as the Company has corrected such statement or omission or effected such compliance, the Company
shall not notify the Agent to resume the offering of Placement Shares.


 


(d) Listing
of Placement Shares. Prior to the date of the first Placement Notice, the Company will use its commercially reasonable efforts to
cause the Placement Shares to be listed on the Exchange.


 


(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agent 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 the
Agent may from time to time reasonably request and, at the Agent’s request, 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 the Agent 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, which requirement may be satisfied by publicly filing the required
information on EDGAR.


 


(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”


 


(h) Notice
of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement Notice
is delivered to the Agent hereunder and ending on the fifth (5th) Trading Day immediately following the final Settlement Date
with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended
prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly
or indirectly in any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any
option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock prior to the thirtieth
(30th) day immediately following the termination of this Agreement; provided, however, that such restrictions
will not be required in connection with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock,
other equity awards to acquire Common Stock or Common Stock issuable upon the exercise of options or vesting of restricted stock units,
pursuant to any equity incentive or benefits plan, stock ownership plan, stock purchase plan or dividend reinvestment plan (but not Common
Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented,
(ii) Common Stock issuable upon the exchange, conversion or redemption of securities or the exercise of warrants, options or other
rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to the Agent and (iii)
Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration for mergers, acquisitions, other
business combinations or strategic alliances occurring after the date of this Agreement which are not issued for capital raising purposes.
Notwithstanding the foregoing, nothing herein shall be construed to restrict the Company’s ability to file a registration statement
under the Securities Act, including another prospectus supplement in connection with the Registration Statement for the issuance of shares
other than the Placement Shares.


 






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(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise the Agent 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 the Agent pursuant to this Agreement.


 


(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agent or its representatives
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 the Agent may reasonably
request.


 


(k) Required
Filings Relating to Placement of Placement Shares. The Company shall disclose, in its quarterly reports on Form 10-Q and in its annual
report on Form 10-K to be filed by the Company with the Commission from time to time, the number of the Placement Shares sold through
the Agent under this Agreement, and the net proceeds to the Company from the sale 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. 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
date under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth, within the relevant period,
the amount of Placement Shares sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to
the Agent with respect to such Placement Shares, and (ii) 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.


 


(l) Representation
Dates; Certificate. (1) Prior to the date of the first Placement Notice and (2) following the delivery of the first Placement Notice,
each time the Company:


 


(i) files the Prospectus
relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of securities
other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus
relating to the Placement Shares;


 


(ii) files an annual
report on Form 10-K under the Exchange Act (including any Annual Report on Form 10-K/A containing amended financial information or a material
amendment to the previously filed Annual Report on Form 10-K);


 


(iii) files its quarterly
reports on Form 10-Q under the Exchange Act; or


 


(iv) files a current
report on Form 8-K containing amended financial information (other than information “furnished” pursuant to Items 2.02 or
7.01 of Current Report on Form 8-K or to provide disclosure pursuant to Item 8.01 of Current Report on Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) 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 “Representation
Date”);


 


the Company shall furnish the
Agent (but in the case of clause (iv) above only if the Agent reasonably determines that the information contained in such Current Report
on Form 8-K is material) with a certificate dated the Representation Date, in the form and substance satisfactory to the Agent and its
counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended or supplemented. The requirement to provide a certificate under this Section 7(l)
shall be waived for any Representation Date occurring at a time during which no Placement Notice is pending or a Suspension is in effect,
which waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale of Placement Shares
hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on
such waiver and did not provide the Agent with a certificate under this Section 7(l), then before the Company delivers the instructions
for the sale of Placement Shares or the Agent sells any Placement Shares pursuant to such instructions, the Company shall provide the
Agent with a certificate in conformity with this Section 7(l) dated as of the date that the instructions for the sale of Placement
Shares are issued.


 


(m) Legal
Opinion. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver is applicable and
excluding the date of this Agreement, the Company shall cause to be furnished to the Agent a written opinion and negative assurance letter
of Paul Hastings LLP (“Company Counsel”) and a written opinion of Cooley LLP (“Intellectual Property
Counsel”), or other counsel reasonably satisfactory to the Agent, in form and substance reasonably satisfactory to the Agent
and its counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate
to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, the Company shall be
required to furnish to the Agent (i) no more than one opinion and negative assurance letter of Company Counsel hereunder per calendar
quarter and (ii) no more than one opinion of Intellectual Property Counsel hereunder per calendar year, and the Company shall not be required
to furnish any such opinion or letter if the Company does not intend to deliver a Placement Notice in such period until such time as the
Company delivers its next Placement Notice; provided, further, that in lieu of such opinions for subsequent periodic filings
under the Exchange Act, counsel may furnish the Agent with a letter (a “Reliance Letter”) to the effect that
the Agent may rely on a prior opinion delivered under this Section 7(m) 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 as of the date of the Reliance Letter).


 






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(n) Comfort
Letter. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver is applicable and
excluding the date of this Agreement, the Company shall cause its independent registered public accounting firm to furnish the Agent letters
(the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements set
forth in this Section 7(n); provided, that if requested by the Agent, the Company shall cause a Comfort Letter to be furnished
to the Agent within ten (10) Trading Days of the date of occurrence of any material transaction or event requiring the filing of a Current
Report on Form 8-K containing financial information (including the restatement of the Company’s financial statements); provided,
however, the Company shall not be required to furnish any such Comfort Letters if the Company does not intend to deliver a Placement
Notice in such period until such time as the Company delivers its next Placement Notice. The Comfort Letter from the Company’s independent
registered public accounting firm shall be in a form and substance reasonably satisfactory to the Agent, (i) confirming that they are
an independent registered public accounting firm within the meaning of the Securities Act and the Public Company Accounting Oversight
Board (“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 underwriters 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 date
and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such
letter.


 


(o) Market
Activities; Compliance with Regulation M. The Company will not, directly or indirectly, (i) take any action designed to cause
or result in, or that constitutes or would 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 Common Stock or (ii) sell, bid for, or purchase Common Stock in violation
of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agent.


 


(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries
will be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,”
as such term is defined in the Investment Company Act.


 


(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity as agent
hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent 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.


 


(r) Blue
Sky and Other Qualifications.  The Company will use its commercially reasonable efforts, in cooperation with the Agent, to
qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain such
qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for less
than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so
long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).


 


(s) Sarbanes-Oxley
Act. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP and including those policies and procedures that (i) pertain
to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets
of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with GAAP, (iii) that receipts and expenditures of the Company are being made only
in accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have
a material effect on its financial statements. The Company and the Subsidiaries will maintain such controls and other procedures, including,
without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are
designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, including,
without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal
executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding
required disclosure and to ensure that material information relating to the Company or the Subsidiaries is made known to them by others
within those entities, particularly during the period in which such periodic reports are being prepared.


 






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(t) Secretary’s
Certificate; Further Documentation. Prior to the date of the first Placement Notice, the Company shall deliver to the Agent a certificate
of the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date, certifying as to (i) the
Second Amended and Restated Certificate of Incorporation of the Company, (ii) the Second Amended and Restated By-laws of the Company,
(iii) the resolutions of the Board of Directors of the Company or a duly authorized committee of the Board of Directors authorizing the
execution, delivery and performance of this Agreement and the issuance of the Placement Shares and (iv) the incumbency of the officers
duly authorized to execute this Agreement and the other documents contemplated by this Agreement. Within five (5) Trading Days of each
Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l), for which
no waiver is applicable, the Company shall have furnished to the Agent such further information, certificates and documents as the Agent
may reasonably request.


 


(u) Emerging
Growth Company Status. The Company will promptly notify the Agent if the Company ceases to be an Emerging Growth Company at any time
during the term of this Agreement; provided, however, that any failure to provide such notice after December 31, 2024 shall not
constitute a violation of its obligations hereunder.


 


8. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing or electronic delivery
of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as the Agent shall reasonably deem
necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents as may be required in connection with
the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates,
if any, for the Placement Shares to the Agent, including any stock or other transfer taxes and any capital duties, stamp duties or other
duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Agent, (iv) the reasonable and documented
fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the reasonable and documented fees and
expenses of Agent including but not limited to the fees and expenses of the counsel to the Agent, payable upon the execution of this Agreement,
in an amount not to exceed (a) $75,000 in connection with the execution of this Agreement, (b) $15,000 per calendar quarter thereafter
payable only in connection with each Representation Date with respect to which the Company is obligated to deliver a certificate pursuant
to Section 7(l) for which no waiver is applicable and excluding the date of this Agreement, and (c) $15,000 for each program “refresh”
(filing of a new registration statement, prospectus or prospectus supplement relating to the Placement Shares and/or an amendment of this
Agreement) executed pursuant to this Agreement, (vi) the qualification or exemption of the Placement Shares under state securities
laws in accordance with the provisions of Section 7(r) hereof, including filing fees, but excluding fees of the Agent’s
counsel, (vii) the printing and delivery to the Agent of copies of any Permitted Issuer Free Writing Prospectus and the Prospectus
and any amendments or supplements thereto in such number as the Agent shall deem reasonably necessary, (viii) the preparation, printing
and delivery to the Agent of copies of the blue sky survey, (ix) the fees and expenses of the transfer agent and registrar for the
Common Stock, (x) the filing and other fees incident to any review by FINRA of the terms of the sale of the Placement Shares including
the reasonable and documented fees of the Agent’s counsel (subject to the cap, set forth in clause (v) above), and (xi) the
fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange.


 


9. Conditions
to the Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement 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, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable judgment, and to
the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:


 


(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the (i) resale of all
Placement Shares issued to the Agent and not yet sold by the Agent and (ii) sale of all Placement Shares contemplated to be issued by
any Placement Notice.


 


(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company 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 statement of a material fact made in the Registration Statement or the Prospectus or any 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, the Prospectus or such documents so that, in the case of the Registration Statement, it will not contain an 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 an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.


 






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(c) No
Misstatement or Material Omission. The Agent 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 the Agent’s reasonable opinion is material, or
omits to state a fact that in the Agent’s reasonable 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 in the authorized capital stock of the Company or any Material Adverse Effect or any development
that would cause a Material Adverse Effect, or a 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 the Agent (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) Legal
Opinions. The Agent shall have received the opinions and negative assurance letters of Company Counsel required to be delivered pursuant
to Section 7(m) on or before the date on which such delivery of such opinions and negative assurance letters, as applicable, are
required pursuant to Section 7(m).


 


(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or before the
date on which such delivery of such Comfort Letter is required pursuant to Section 7(n).


 


(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on or before the
date on which delivery of such certificate is required pursuant to Section 7(l).


 


(h) No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been delisted
from the Exchange.


 


(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company shall
have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents as the Agent may
reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.


 


(j) 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.


 


(k) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice of issuance,
or (ii) the Company shall have filed a notification of listing of additional shares with respect to the Placement Shares on the Exchange
at, or prior to, the issuance of any Placement Notice and, if required, the Exchange shall have reviewed such application and not provided
any objections thereto.


 


(l) FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable
to the Agent as described in the Prospectus.


 


(m) No
Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section
12(a).


 


10. Indemnification
and Contribution.


 


(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective partners, members,
directors, officers, employees and agents and each person, if any, who controls the Agent or any affiliate within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:


 


(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;


 






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(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company, which consent
shall not unreasonably be delayed or withheld; and


 


(iii) against
any and all expense whatsoever, as incurred (including the reasonable and documented fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission
(whether or not a party), to the extent that any such expense is not paid under (i) or (ii) above,


 


provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agent Information
(as defined below).


 


(b) Agent
Indemnification. The Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained
in Section 10(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), the Prospectus (or any amendment or supplement thereto) or any Issuer
Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information relating to the Agent
and furnished to the Company in writing by the Agent expressly for use therein. The Company hereby acknowledges that the only information
that the Agent has furnished to the Company expressly for use in the Registration Statement, the Prospectus, any Prospectus Supplement
or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the name of the Agent and the statements set forth
in the seventh and eighth paragraphs under the caption “Plan of Distribution” in the Prospectus Supplement (the “Agent
Information”).


 


(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of notice 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
10, 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 10 and (ii) any liability that it may have to any indemnified party under the foregoing
provision of this Section 10 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 other legal expenses except as provided below and except for the reasonable
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 or counsel reasonably
satisfactory to the indemnified party, in each case, 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 (plus local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such
reasonable and documented 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 10
(whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an express
and unconditional release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all
liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified party.


 






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(d) Settlement
Without Consent if Failure to Reimburse.  If an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable and documented fees and expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 10(a)(ii) effected without its written consent if (1) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (3) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.


 


(e) 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 10 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient from
the Company or the Agent, the Company and the Agent 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) to which the Company and the Agent may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The relative benefits received
by the Company on the one hand and the Agent 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 the
Agent 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 laws, 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 the Agent,
on the other hand, 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 the Agent, 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 the Agent agree that
it would not be just and equitable if contributions pursuant to this Section 10(e) 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 10(e) shall be deemed to include, for the purpose of this Section 10(e), 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 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(e), the Agent 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 10(e), any person who controls a party to this Agreement within
the meaning of the Securities Act, any affiliates of the Agent and any officers, directors, partners, employees or agents of the Agent
or any of its affiliates, will have the same rights to contribution as that party, and each director of the Company and each officer of
the Company who signed the Registration Statement 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 10(e), 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 10(e) 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 10(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 10(c) hereof.


 


11. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 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 the Agent, any controlling persons, or the Company (or any of
their respective officers, directors, employees or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.


 






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12. Termination.


 


(a) The
Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since the
time of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any development
or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties, earnings, results of
operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course
of business, which individually or in the aggregate, in the sole judgment of the Agent is material and adverse and makes it impractical
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if there has occurred
any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the
Common Stock has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended
or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities settlements
or clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium has been declared
by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any other party except
that the provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification and Contribution), Section 11
(Representations and Agreements to Survive Delivery), Section 17 (Governing Law and Time; Waiver of Jury Trial) and Section
18 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination. If the Agent elects to
terminate this Agreement as provided in this Section 12(a), the Agent shall provide the required notice as specified in Section
13 (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 8, Section 10, Section 11, Section 17 and Section 18 hereof shall remain
in full force and effect notwithstanding such termination.


 


(c) The
Agent 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 8, Section 10, Section 11, Section 17 and Section 18 hereof shall remain
in full force and effect notwithstanding such termination.


 


(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), or (c) 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 8, Section 10, Section 11, Section 17 and Section 18 shall
remain in full force and effect.


 


(e) 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 the Agent 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.


 


13. 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, and if sent to the Agent, shall be delivered to:


 


Cantor Fitzgerald &
Co.


499 Park Avenue


New York, NY 10022


Attention: Capital
Markets


Facsimile: (212)
307-3730


 






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and:


 


Cantor Fitzgerald &
Co.


499 Park Avenue


New York, NY 10022


Attention: General
Counsel


Facsimile: (212)
829-4708


 


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


 


DLA Piper LLP (US)


1251 Avenue of the
Americas


New York, NY 10022


Attention: Stephen
P. Alicanti, Esq,


Email: Stephen.Alicanti@us.dlapiper.com


 


and if to the Company,
shall be delivered to:


 


Jasper Therapeutics,
Inc.


2200 Bridge Pkwy Suite
#102

Redwood City, CA 94065


Attention: Ronald Martell,
Chief Executive Officer

Email: rmartell@jaspertherapeutics.com


 


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


 


Paul Hastings LLP


1117 S. California Avenue

Palo Alto, CA 94304


Attention: Jeffrey
T. Hartlin, Esq.


Email: jeffhartlin@paulhastings.com


 


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 or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) by Electronic Notice, as set forth below, (iii) on the next Business Day after timely delivery
to a nationally-recognized overnight courier or (iv) on the Business Day actually received if deposited in the U.S. mail (certified
or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day”
shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.


 


An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall
be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be
sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.


 


14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective successors
and the parties referred to in Section 10 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 the Agent may assign its rights
and obligations hereunder to an affiliate thereof without obtaining the Company’s consent, so long as such affiliate is a registered
broker dealer and the Agent provides advance written notice of such assignment to the Company.


 






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15. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to
take into account any stock split, stock dividend or similar event effected with respect to the Placement Shares.


 


16. Entire
Agreement; Amendment; Severability; Waiver. 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 the Agent. 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. No implied waiver by a party shall arise in the
absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.


 


17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


18. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE 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.


 


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, electronic
mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic
Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.


 


20. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer to
such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted, supplemented
or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated thereunder.


 






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21. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of the Agent,
which shall not be unreasonably withheld, conditioned or delayed, and the Agent represents, warrants and agrees that, unless it obtains
the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, it has not made and will not
make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing
prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus
as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending
and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit 21
hereto are Permitted Free Writing Prospectuses.


 


22. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:


 


(a) the
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not the Agent has advised or is advising the Company on other matters, and the Agent has no obligation to the Company with
respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;


 


(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;


 


(c) neither
the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;


 


(d) it
is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those
of the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and


 


(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of fiduciary duty
or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent and
its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of
Company.


 


23. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:


 


“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each Settlement
Date.


 


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


 


“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that
does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.


 


“Rule 164,”
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,”
“Rule 424(b),” “Rule 430B,” and “Rule 433”
refer to such rules under the Securities Act Regulations.


 


All references in this Agreement
to financial statements and schedules and other information that is “contained,” “included” or “stated”
in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus,
as the case may be.


 


All references in this Agreement
to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include
the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with
any offering, sale or private placement of any Placement Shares by the Agent outside of the United States.


 


[Signature Page Follows]


 






    -24-


     


    

 





If the foregoing correctly
sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon
this Agreement shall constitute a binding agreement between the Company and the Agent.


 


	 	Very truly yours,
	 	 
	 	JASPER THERAPEUTICS, INC.
	 	 
	 	By:	/s/ Ronald Martell
	 	 	Name:  Ronald Martell
	 	 	Title: President and Chief Executive Officer
	 	 	 
	 	ACCEPTED as of the date first-above written:


 


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








 






     


     


    

 


SCHEDULE 1


__________________________


 


Form of Placement Notice


__________________________


 


	From:	 	Jasper Therapeutics, Inc.
	 	 	 
	To:	 	Cantor Fitzgerald & Co.
		 	Attention:  [●]
	 	 	 
	Subject:	 	Placement Notice
	 	 	 
	Date:	 	[●], 202[●]


 


Ladies and Gentlemen:


 


Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Jasper Therapeutics, Inc., a Delaware corporation (the “Company”),
and Cantor Fitzgerald & Co. (the “Agent”), dated November 10, 2022, the Company hereby requests that the
Agent sell up to [●] of the Company’s voting common stock, par value $0.0001 per share, at a minimum market price of $[●]
per share, during the time period beginning [month, day, time] and ending [month, day, time].








 






     


     


    

 


SCHEDULE 2


__________________________


 


Compensation


__________________________


 


The Company shall pay to the
Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the aggregate gross proceeds
from each sale of Placement Shares.


 









     


     


    

 


SCHEDULE 3


_________________________


 


Notice Parties


__________________________


 


The Company


 


Ronald Martell (rmartell@jaspertherapeutics.com)


 


Jeet Mahal (jmahal@jaspertherapeutics.com)


 


The Agent


 


Sameer Vasudev (svasudev@cantor.com)


 


With copies to:


 


CFCEO@cantor.com





 






     


     


    

 


SCHEDULE 4


__________________________


 


Subsidiaries


__________________________


 


Incorporated by reference to Exhibit 21.1 of the
Company’s most recently filed Annual Report on Form 10-K.





 






     


     


    

 


Form of Representation Date
Certificate Pursuant to Section 7(l)


 


The undersigned, the duly qualified and elected
[●], of Jasper Therapeutics, Inc., a Delaware corporation (the “Company”), does hereby certify in such capacity
and on behalf of the Company, pursuant to Section 7(l) of the Sales Agreement, dated November 10, 2022 (the “Sales
Agreement”), between the Company and Cantor Fitzgerald & Co., that to the best of the knowledge of the undersigned:


 


(i) The representations and warranties of the
Company in Section 6 of the Sales Agreement 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; provided, however, that such representations and warranties also shall
be qualified by the disclosure included or incorporated by reference in the Registration Statement and Prospectus; 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.


 


Capitalized terms used herein
without definition shall have the meanings given to such terms in the Sales Agreement.


 


	 	Jasper Therapeutics, Inc.  
	 	 
	 	By:	                                        
	 	Name:	 
	 	Title:	 



 


Date: [●]


 






     


     


    

 


Exhibit 21


 


Permitted Free Writing Prospectus


 


None.