Exhibit 10.1


 

RITTER
PHARMACEUTICALS, INC.


 


COMMON
STOCK


 


SALES
AGREEMENT


 


November
6, 2019


 


A.G.P./Alliance
Global Partners


590
Madison Avenue


New
York, NY 10022


 


Ladies
and Gentlemen:


 


Ritter
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with A.G.P./Alliance Global Partners, 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 to or through A.G.P./Alliance Global Partners, acting as
agent and/or principal (the “Sales Agent”), shares of the Company’s common stock, par value $0.001
per share (the “Common Stock”), subject to the limitations set forth in Section 3(b) hereof.
The issuance and sale of shares of Common Stock to or through the Sales Agent will be effected pursuant to the Registration Statement
(as defined below) filed by the Company and which was declared effective under the Securities Act (as defined below) by the U.S.
Securities and Exchange Commission (the “Commission”).


 


The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “Securities Act”), with the Commission, not earlier than three years prior
to the date hereof, a shelf registration statement on Form S-3 (File No. 333-232798), including a base prospectus, relating to
certain securities, including the Common Stock, to be issued from time to time by the Company, and which incorporates by reference
documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has
prepared a prospectus supplement to the base prospectus included as part of such registration statement at the time it became
effective specifically relating to the offering of Common Stock pursuant to this Agreement (the “Prospectus Supplement”).
The Company will furnish to the Sales Agent, for use by the Sales Agent, copies of the base prospectus included as part of such
registration statement at the time it became effective, as supplemented by the Prospectus Supplement, relating to the offering
of Common Stock pursuant to this Agreement. Except where the context otherwise requires, “Registration Statement,”
as used herein, means such registration statement, as amended at the time of such registration statement’s effectiveness
for purposes of Section 11 of the Securities Act, including (1) all documents filed as a part thereof or incorporated or deemed
to be incorporated by reference therein, (2) any information contained or incorporated by reference in a Prospectus (as defined
below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act, to the extent such information
is deemed, pursuant to Rule 430B under the Securities Act, to be part of the registration statement at the effective time, and
(3) any abbreviated registration statement filed pursuant to Rule 462(b) under the Securities Act to register the offer and sale
of additional shares of Common Stock pursuant to this Agreement. Except where the context otherwise requires, “Prospectus,”
as used herein, means the base prospectus included in the registration statement at the time it became effective, including all
documents incorporated therein by reference to the extent such information has not been superseded or modified in accordance with
Rule 412 under the Securities Act (as qualified by Rule 430B(g) under the Securities Act), as it may be supplemented by the Prospectus
Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with
the Commission pursuant to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus,”
as defined in Rule 433 of the Securities Act (“Rule 433”), relating to the Common Stock that (i) is
required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case
in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g) (each, an “Issuer Free Writing Prospectus”). Any reference herein to
the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to either the Electronic Data Gathering Analysis and Retrieval
System, or if applicable, the Interactive Data Electronic Applications (collectively “EDGAR”).


 




    	 



    	 



    

 


2. Placements.
Each time that the Company wishes to issue and sell the Common Stock through the Sales Agent, as agent, hereunder (each, a “Placement”),
it will notify the Sales Agent by email notice (or other method mutually agreed to in writing by the parties) (a “Placement
Notice”) containing the parameters in accordance with which it desires the Common Stock to be sold, which shall
at a minimum include the number of shares of Common Stock to be issued (the “Placement Shares”), the
time period during which sales are requested to be made, any limitation on the number of shares of Common Stock that may be sold
in any one Trading Day (as defined in Section 3) and any minimum price below which sales may not be made, a form of which
containing such minimum sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall
originate from any of the individuals from the Company set forth on Schedule 2 (with a copy to each of the other
individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Sales Agent
set forth on Schedule 2, as such Schedule 2 may be amended from time to time. The Placement Notice
shall be effective upon receipt by the Sales Agent unless and until (i) in accordance with the notice requirements set forth in
Section 4, the Sales Agent declines to accept the terms contained therein for any reason, in its sole discretion, (ii)
the entire amount of the Placement Shares have been sold, (iii) in accordance with the notice requirements set forth in Section
4, the Company suspends or terminates the Placement Notice, (iv) the Company issues a subsequent Placement Notice with parameters
superseding those on the earlier dated Placement Notice, or (v) the Agreement has been terminated under the provisions of Section
11. The amount of any discount, commission or other compensation to be paid by the Company to the Sales Agent in connection
with the sale of the Placement Shares through the Sales Agent, as agent, shall be as set forth in Schedule 3. It
is expressly acknowledged and agreed that neither the Company nor the Sales 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 Sales Agent and the Sales
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 Sales Agent.


 


(a)
Subject to the terms and conditions herein set forth, upon the Company’s issuance 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 Sales Agent, as agent for the Company, 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”), for the period specified in the Placement Notice, to sell such Placement Shares
up to the amount specified by the Company in, and otherwise in accordance with the terms of such Placement Notice. If acting as
agent hereunder, the Sales Agent will provide written confirmation to the Company (including by email correspondence to each of
the individuals of the Company set forth on Schedule 2, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) no later than the opening of the Trading Day
(as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth
the number of Placement Shares sold on such day, the compensation payable by the Company to the Sales 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 Sales Agent (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales. Subject
to the terms of the Placement Notice, the Sales Agent may sell Placement Shares by any method permitted by law deemed to be an
“at the market” offering as defined in Rule 415 under the Securities Act, including without limitation sales made
directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. Subject to
the terms of a Placement Notice, the Sales Agent may also sell Placement Shares by any other method permitted by law, including
but not limited to in negotiated transactions with the Company’s prior written consent. The Company acknowledges and agrees
that (i) there can be no assurance that the Sales Agent will be successful in selling Placement Shares, (ii) the Sales 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 Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales
practices and applicable law and regulations to sell such Placement Shares as required under this Agreement and (iii) the Sales
Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise
agreed by the Sales Agent and the Company in writing and expressly set forth in a Placement Notice. For the purposes hereof, “Trading
Day” means any day on which the Company’s Common Stock is purchased and sold on the principal market on which
the Common Stock is listed or quoted.


 




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(b)
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 number or gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of: (i) the number or dollar amount of shares of Common Stock registered pursuant to the Registration
Statement pursuant to which the offering hereunder is being made, (ii) the number of authorized but unissued and unreserved shares
of Common Stock, (iii) the number or dollar amount of shares of Common Stock permitted to be offered and sold by the Company under
Form S-3 (including General Instruction I.B.6. of Form S-3, if and for so long as applicable), (iv) the number or dollar amount
of shares of Common Stock 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 Sales Agent in
writing, or (v) the number or dollar amount of shares of Common Stock for which the Company has filed the Prospectus Supplement
or other prospectus supplement specifically relating to the offering of the Placement Shares pursuant to this Agreement. 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, and notified to the Sales Agent in writing. Notwithstanding anything to the
contrary contained herein, the parties hereto acknowledge and agree that compliance with the limitations set forth in this Section
3(b) on the number or dollar amount of Placement Shares that may be issued and sold under this Agreement from time to time
shall be the sole responsibility of the Company, and that the Sales Agent shall have no obligation in connection with such compliance.


 


(c)
During the term of this Agreement, neither the Sales Agent nor any of its affiliates or subsidiaries shall engage in (i) any short
sale of any security of the Company or (ii) any sale of any security of the Company that the Sales Agent does not own or any sale
which is consummated by the delivery of a security of the Company borrowed by, or for the account of, the Sales Agent. During
the term of this Agreement and notwithstanding anything to the contrary herein, the Sales Agent agrees that in no event will the
Sales Agent or its affiliates engage in any market making, bidding, stabilization or other trading activity with regard to the
Common Stock or related derivative securities if such activity would be prohibited under Regulation M or other anti-manipulation
rules under the Exchange Act.


 


4.
Suspension of Sales.


 


(a)
The Company or the Sales 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 2, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2),
suspend any sale of Placement Shares for a period of time (a “Suspension Period”); provided,
however, that such suspension shall not affect or impair either party’s obligations with respect to any Placement
Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section
4 shall be effective against the other unless it is made to one of the individuals named on Schedule 2 hereto,
as such schedule may be amended from time to time. During a Suspension Period, the Company shall not issue any Placement Notices
and the Sales Agent shall not sell any Placement Shares hereunder. The party that issued a suspension notice shall notify the
other party in writing of the Trading Day on which the Suspension Period shall expire not later than twenty-four (24) hours prior
to such Trading Day.


 




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(b)
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 Sales 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 Sales Agent shall not be obligated to sell or offer to sell any Placement
Shares.


 


5.
Settlement.


 


(a)
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of
Placement Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way
trading) following the respective Point of Sale (as defined below) (each, a “Settlement Date”). The
amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net
Proceeds”) will be equal to the aggregate sales price received by the Sales Agent at which such Placement Shares
were sold, after deduction for (i) the Sales Agent’s discount, commission or other compensation for such sales payable by
the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any clearing organization or any governmental
or self-regulatory organization in respect of such sales.


 


(b)
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to,
electronically transfer the Placement Shares being sold by crediting the Sales Agent’s or its designee’s account (provided
the Sales Agent shall have given the Company written notice of such designee 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 Sales 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 duly authorized Placement Shares on a Settlement Date, the Company agrees that in addition to and
in no way limiting the rights and obligations set forth in Section 9(a) (Indemnification and Contribution) hereto, the
Company will (i) hold the Sales Agent, its directors, officers, members, partners, employees and agents of the Sales Agent, each
broker dealer affiliate of the Sales Agent, and each person, if any, who (A) controls the Sales Agent within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act or (B) is controlled by or is under common control with the Sales Agent
(each, a “Sales Agent Affiliate”), and the Sales Agent’s clearing organization, harmless against
any loss, claim, damage, or expense (including reasonable 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 Sales Agent any commission, discount,
or other compensation to which it would otherwise have been entitled absent such default.


 




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6.
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Sales Agent
that as of each Applicable Time (as defined in Section 22(a)), unless such representation, warranty or agreement specifies
a different time or times:


 


(a)
Compliance with Registration Requirements. The Registration Statement was declared effective under the Securities Act by
the Commission on August 1, 2019, and any post-effective amendment thereto and any Rule 462(b) Registration Statement have also
been declared effective by the Commission or became effective upon filing under the Securities Act. The Company has not received
from the Commission any notice pursuant to Rule 401(g)(1) under the Securities Act objecting to the use of the shelf registration
statement form. At the time of the initial filing of the Registration Statement, the Company paid the required Commission filing
fees relating to the Placement Shares in accordance with Rules 456(a) and 457(o) under the Securities Act. The Company has complied
to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information. No stop
order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect and no
proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company, are contemplated or
threatened by the Commission. At the time of (i) the initial filing of the Registration Statement with the Commission and (ii)
the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus),
the Company met the then applicable requirements for use of Form S-3 under the Securities Act, including compliance with General
Instructions I.A and I.B.6. of Form S-3, if and for so long as applicable. The Registration Statement and the offer and sale of
the Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all material
respects with said Rule. In the section entitled “Plan of Distribution” in the Prospectus Supplement, the Company
has named A.G.P./Alliance Global Partners as an agent that the Company has engaged in connection with the transactions contemplated
by this Agreement. At the time of the initial filing of the Registration Statement and any post-effective amendment thereto with
the Commission, at the time the Registration Statement and any post-effective amendment thereto was declared effective by the
Commission, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the Securities Act) of the Placement Shares and at each Applicable Time, the Company was not
and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer. At the time of the initial
filing of the Registration Statement with the Commission, at the time the Registration Statement was declared effective by the
Commission and as of the date hereof, the Company was an “emerging growth company” and a “smaller reporting
company” (as such terms are defined in Rule 12b-2 under the Exchange Act).


 




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(b)
No Misstatement or Omission. The Registration Statement and any post-effective amendment thereto, at the time it became
or becomes effective, complied or will comply in all material respects with the Securities Act. The Prospectus, and any amendment
or supplement thereto, on the date of such Prospectus or amendment or supplement, complied or will comply in all material respects
with the Securities Act. The Registration Statement and any post-effective amendment thereto, at the time it became or becomes
effective, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its
date, did not and, as of each Point of Sale and each Settlement Date, will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Prospectus,
or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to the Sales Agent
furnished to the Company in writing by the Sales Agent expressly for use therein. “Point of Sale” means,
for a Placement, the time at which an acquiror of Placement Shares entered into a contract, binding upon such acquiror, to acquire
such Placement Shares.


 


(c)
Offering Materials Furnished to the Sales Agent. Copies of the Registration Statement, the Prospectus, and all amendments
or supplements thereto 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 publicly available through EDGAR, to the Sales Agent. Each Prospectus
delivered to the Sales Agent for use in connection with the sale of the Placement Shares pursuant to this Agreement will be identical
to the version of such Prospectus filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T.


 


(d)
Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the
completion of the Sales Agent’s distribution of the Placement Shares, any offering material in connection with the offering
and sale of the Placement Shares other than the Prospectus or the Registration Statement.


 


(e)
The Sales Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a
valid, legal, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights
to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally, and subject to
general principles of equity. The Company has full corporate power and authority to enter into this Agreement and to authorize,
issue and sell the Placement Shares as contemplated by this Agreement, subject to the Company’s compliance with the provisions
of Section 4.12 of that certain Securities Purchase Agreement, dated as of October 30, 2018, by and among the Company and the
purchasers named therein. This Agreement conforms in all material respects to the descriptions thereof in the Registration
Statement and the Prospectus.


 


(f)
Authorization of the Placement Shares. The Placement Shares, when issued and paid for as contemplated herein, will be validly
issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive,
registration or similar rights, and will conform to the description of the Common Stock contained in the Registration Statement
and the Prospectus.


 




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(g)
No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have
any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly waived. 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 hereunder, whether as a result of the filing
or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated hereby or otherwise.


 


(h)
No Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which
information is given in the Prospectus: (i) there has been no material adverse change in the business, properties, prospects,
operations, condition (financial or otherwise) or results of operations of the Company (any such change is called a “Material
Adverse Change”), or any development involving a prospective material adverse change, which, individually or in
the aggregate, has had or would reasonably be expected to result in a Material Adverse Change; (ii) the Company has not incurred
any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into
any material transaction or agreement not in the ordinary course of business; (iii) there has been no dividend or distribution
of any kind declared, paid or made by the Company; (iv) no officer or director of the Company has resigned from any position with
the Company; and (v) there has not been any Material Adverse Change in the Company’s long-term or short-term debt.


 


(i)
Independent Accountants. To the knowledge of the Company, Mayer Hoffman McCann P.C., whose report is filed with the Commission
and included or incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public
accounting firm as required by the Securities Act and the Public Company Accounting Oversight Board. Mayer Hoffman McCann P.C.
has not, during the periods covered by the financial statements included or incorporated by reference in the Registration Statement
and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.


 


(j)
Financial Statements. The financial statements, including the notes thereto and supporting schedules included or incorporated
by reference in the Registration Statement and the Prospectus, fairly present in all material respects the financial position
and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements
have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), consistently
applied throughout the periods involved (provided that unaudited interim financial statements are subject to year-end audit adjustments
that are not expected to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules
included in the Registration Statement and the Prospectus present fairly the information required to be stated therein. Except
as included or incorporated by reference therein, no historical or pro forma financial statements are required to be included
or incorporated by reference in the Registration Statement or the Prospectus under the Securities Act. The pro forma and pro forma
as adjusted financial information and the related notes, if any, included or incorporated by reference in the Registration Statement
and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements of the Securities Act
and present fairly the information shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures contained
in the Registration Statement or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by
the rules and regulations of the Commission), if any, comply in all material respects with Regulation G of the Exchange Act and
Item 10 of Regulation S-K of the Securities Act, to the extent applicable. Each of the Registration Statement and the Prospectus
discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other
relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on
the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures,
capital resources, or significant components of revenues or expenses.


 




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


 


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


 


(m)
XBRL. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement 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.


 


(n)
Incorporation and Good Standing of the Company. The Company is a corporation duly incorporated and validly existing under
the laws of the State of Delaware. The Company is not currently in good standing under the laws of the State of Delaware due to
outstanding franchise taxes owed to the State of Delaware for fiscal year 2019. The Company has requisite corporate power to carry
on its business as described in the Prospectus. The Company is duly qualified to transact business and is in good standing in
all jurisdictions in which the conduct of its business requires such qualification; except where the failure to be so qualified
or to be in good standing would not result in a Material Adverse Change. The Company has no subsidiaries and does not own or control,
directly or indirectly, any corporation, association or other entity.


 


(o)
Capital Stock Matters. All issued and outstanding securities of the Company issued prior to the transactions contemplated
by this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have
no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none
of such securities were issued in violation of the preemptive rights of any holders of any security of the Company or similar
contractual rights granted by the Company. The authorized shares of Common Stock conform in all material respects to all statements
relating thereto contained in the Registration Statement and the Prospectus. The offers and sales of the outstanding shares of
Common Stock were at all relevant times either registered under the Securities Act and the applicable state securities or “blue
sky” laws or, based in part on the representations and warranties of the purchasers of such shares, exempt from such registration
requirements. The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the
options or other rights granted thereunder, as described in the Registration Statement and the Prospectus, accurately and fairly
present, in all material respects, the information required to be shown with respect to such plans, arrangements, options and
rights.


 




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(p)
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. The Company’s execution,
delivery and performance of this Agreement and consummation of the transactions contemplated hereby or by the Registration Statement
and the Prospectus (including the issuance and sale of the Placement Shares and the use of the proceeds from the sale of the Placement
Shares as described in the Prospectus under the caption “Use of Proceeds”) will not (A) result in a material violation
of any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof (including,
without limitation, those promulgated by the Food and Drug Administration of the U.S. Department of Health and Human Services
(the “FDA”) or by any foreign, federal, state or local regulatory authority performing functions similar
to those performed by the FDA), (B) conflict with, result in any violation or breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) (a “Default Acceleration Event”)
of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (“Contract”)
or obligation or other understanding to which the Company is a party or by which any property or asset of the Company is bound
or affected, except to the extent that such conflict, default, or Default Acceleration Event is not reasonably likely to result
in a Material Adverse Change, or (C) result in a breach or violation of any of the terms and provisions of, or constitute a default
under, the Company’s Amended and Restated Certificate of Incorporation (as the same may be amended or restated from time
to time) or bylaws (as the same may be amended or restated from time to time). The Company is not in violation, breach
or default under its Amended and Restated Certificate of Incorporation (as the same may be amended or restated from time to time)
or Amended and Restated Bylaws (as the same may be amended or restated from time to time). Neither the Company nor, to its knowledge,
any other party is in violation, breach or default of any Contract that has resulted in or could reasonably be expected to result
in a Material Adverse Change. Each approval, consent, order, authorization, designation, declaration or filing by or with any
regulatory, administrative or other governmental body necessary in connection with the execution and delivery by the Company of
this Agreement and the performance of the Company of the transactions herein contemplated has been obtained or made and is in
full force and effect, except (i) with respect to any Applicable Time at which the Sales Agent would not be able to rely on Rule
5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), such additional steps
as may be required by FINRA, (ii) filings with the Commission required under the Securities Act or the Exchange Act, or filings
with the Exchange pursuant to the rules and regulations of the Exchange, in each case that are contemplated by this Agreement
to be made after the date of this Agreement, and (iii) such additional steps as may be necessary to qualify the Common Stock for
sale by the Sales Agent under state securities or Blue Sky laws.


 




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(q)
No Material Actions or Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation
or governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the
Company’s knowledge, any executive officer or director, including any proceeding before the FDA or comparable federal, state,
local or foreign governmental bodies (it being understood that the interaction between the Company and the FDA and such comparable
governmental bodies relating to the clinical development and product approval process shall not be deemed proceedings for purposes
of this representation), which has not been disclosed in the Registration Statement and the Prospectus which is required to be
disclosed.


 


(r)
Labor Disputes. No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent.
The Company is not aware that any key employee or significant group of employees of the Company plans to terminate employment
with the Company.


 


(s)
Compliance with Certain Applicable Laws. The Company: (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 (“Applicable Laws”), except as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Change; (B) has not received any warning letter, untitled letter or other correspondence
or notice from any 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; (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; and (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).


 


(t)
Tax Law Compliance. The Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities
prior to the date hereof or has duly obtained extensions of time for the filing thereof. The Company has paid all taxes (as hereinafter
defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company, other
than its Delaware franchise taxes for fiscal year 2019. The provisions for taxes payable, if any, shown on the financial statements
filed with or as part of or incorporated by reference in the Registration Statement are sufficient for all accrued and unpaid
taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. Other
than as disclosed in the Registration Statement and the Prospectus, (i) no issues have been raised (and are currently pending)
by any taxing authority in connection with any of the returns or taxes asserted as due from the Company, and (ii) no waivers of
statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the Company. There
are no tax liens against the assets, properties or business of the Company. The term “taxes” means all
federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatever, together with any
interest and any penalties, additions to tax or additional amounts with respect thereto. The term “returns”
means all returns, declarations, reports, statements and other documents required to be filed in respect to taxes.


 




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(u)
Company Not an “Investment Company”. The Company is not, and will not be, either after receipt of payment for
the Placement Shares or after the application of the proceeds therefrom as described under “Use of Proceeds” in the
Registration Statement or the Prospectus, required to register as an “investment company” under the Investment Company
Act of 1940, as amended (the “Investment Company Act”).


 


(v)
Insurance. The Company carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts and
covering such risks which the Company believes are adequate, and all such insurance is in full force and effect. The Company has
no reason to believe that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or
(ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now
conducted and at a cost that would not result in a Material Adverse Change.


 


(w)
No Price Stabilization or Manipulation. The Company has not taken, directly or indirectly (without giving any effect to
the activities of the Agent), any action designed to or that might cause or result in stabilization or manipulation of the price
of the Common Stock or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act
(“Regulation M”)) with respect to the Common Stock, whether to facilitate the sale or resale of the
Placement Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.


 


(x)
Related Party Transactions. There are no business relationships or related party transactions involving the Company or
any other person required to be described in the Registration Statement and the Prospectus that have not been described as required
pursuant to the Securities Act.


 


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


 




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(z)
Conformity of Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act on the date of first use, and the Company has complied or will comply with
any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement
Shares, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not
been superseded or modified. The Company has not made any offer relating to the Placement Shares that would constitute an Issuer
Free Writing Prospectus without the prior written consent of the Sales Agent. The Company has retained in accordance with the
Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act.


 


(aa)
Compliance with Environmental Laws. The Company is in compliance with all foreign, federal, state and local rules, laws
and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection
of health and safety or the environment which are applicable to its business (“Environmental Laws”),
except where the failure to comply would not, singularly or in the aggregate, result in a Material Adverse Change. There has been
no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of toxic
or other wastes or other hazardous substances by, due to, or caused by the Company (or, to the Company’s knowledge, any
other entity for whose acts or omissions the Company is or may otherwise be liable) upon any of the property now or previously
owned or leased by the Company, or upon any other property, in violation of any law, statute, ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any law, statute, ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for any violation or liability which would not have, singularly
or in the aggregate with all such violations and liabilities, a Material Adverse Change; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Company has knowledge, except for any such disposal, discharge,
emission, or other release of any kind which would not have, singularly or in the aggregate with all such discharges and other
releases, a Material Adverse Change. In the ordinary course of business, the Company conducts periodic reviews of the effect of
Environmental Laws on its business and assets, in the course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or governmental permits issued thereunder, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such reviews, the Company has reasonably concluded that such associated costs and
liabilities would not have, singularly or in the aggregate, a Material Adverse Change.


 




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(bb)
Intellectual Property. The Company owns or possesses or has valid rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets
and similar rights (“Intellectual Property Rights”) necessary for the conduct of the business of the
Company as currently carried on and as described in the Registration Statement and the Prospectus, except as would not be reasonably
likely to result in a Material Adverse Change. To the knowledge of the Company, no action or use by the Company necessary for
the conduct of its business as currently carried on and as described in the Registration Statement and the Prospectus will involve
or give rise to any infringement of, or license or similar fees for, any Intellectual Property Rights of others, except where
such action, use, license or fee is not reasonably likely to result in a Material Adverse Change. The Company has not received
any notice alleging any such infringement, fee or conflict with asserted Intellectual Property Rights of others. Except as would
not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change (A) to the knowledge of the
Company, there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property Rights owned
by the Company; (B) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others
challenging the rights of the Company in or to any such Intellectual Property Rights, and the Company is unaware of any facts
which would form a reasonable basis for any such claim, that would, individually or in the aggregate, together with any other
claims in this Section 6(bb), reasonably be expected to result in a Material Adverse Change; (C) the Intellectual Property
Rights owned by the Company and, to the knowledge of the Company, the Intellectual Property Rights licensed to the Company have
not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and 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 Rights, and the Company is unaware of any facts which would form a reasonable basis for any
such claim that would, individually or in the aggregate, together with any other claims in this Section 6(bb), reasonably
be expected to result in a Material Adverse Change; (D) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company infringes, misappropriates or otherwise violates any Intellectual Property
Rights or other proprietary rights of others, the Company has not received any written notice of such claim and the Company is
unaware of any other facts which would form a reasonable basis for any such claim that would, individually or in the aggregate,
together with any other claims in this Section 6(bb), reasonably be expected to result in a Material Adverse Change; and
(E) to the Company’s knowledge, no employee of the Company is in or has ever been in violation in any material respect of
any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation
agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation
relates to such employee’s employment with the Company, or actions undertaken by the employee while employed with the Company
and could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change. To the Company’s
knowledge, all material technical information developed by and belonging to the Company which has not been patented has been kept
confidential. The Company is not a party to or bound by any options, licenses or agreements with respect to the Intellectual Property
Rights of any other person or entity that are required to be set forth in the Registration Statement and the Prospectus and are
not described therein. The Registration Statement and the Prospectus contain in all material respects the same description of
the matters set forth in the preceding sentence. None of the technology employed by the Company has been obtained or is being
used by the Company in violation of any contractual obligation binding on the Company or, to the Company’s knowledge, any
of its officers, directors or employees, or otherwise in violation of the rights of any persons.


 




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(cc)
Brokers. The Company is not a party to any contract, agreement or understanding with any person (other than as contemplated
by this Agreement) that would give rise to a valid claim against the Company or the Sales Agent for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Placement Shares by the Sales Agent under this Agreement.


 


(dd)
No Outstanding Loans or Other Indebtedness. There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company, or any of their respective family members, except as disclosed in the Registration Statement
and the Prospectus.


 


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


 


(ff)
Broker-Dealer Status. Neither the Company nor any of its related entities (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 of Article I of the NASD Manual administered by FINRA). To the Company’s knowledge, there are no affiliations
or associations between any member of FINRA and any of the Company’s officers, directors or 5% or greater security holders,
except as set forth in the Registration Statement.


 


(gg)
Public Float Calculation. As of the close of trading on the Exchange on November 6, 2019, the aggregate market value of
the outstanding voting and non-voting common equity (as defined in Rule 405) of the Company held by persons other than affiliates
of the Company (pursuant to Rule 144 of the Securities Act, 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 approximately $11.0 million (calculated by multiplying (x) the price at which the common equity of the Company was
last sold on the Exchange on September 9, 2019 by (y) the number of Non-Affiliate Shares outstanding on November 6, 2019). The
Company is not a shell company (as defined in Rule 405) 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.


 






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(hh)
FINRA Matters. All of the information provided to the Sales Agent or to counsel for the Sales Agent by the Company, its
counsel, its officers and directors and, to the Company’s knowledge, the holders of any securities (debt or equity) or options
to acquire any securities of the Company in connection with the offering of the Placement Shares is true, complete, correct and
compliant with FINRA’s rules in all material respects and any letters, filings or other supplemental information provided
to FINRA pursuant to FINRA Rules or NASD Conduct Rules is true, complete and correct in all material respects. Except as disclosed
in the Registration Statement and the Prospectus, there is no (i) officer or director of the Company, (ii) beneficial owner of
5% or more of any class of the Company’s securities or (iii) beneficial owner of the Company’s unregistered equity
securities that were acquired during the 180-day period immediately preceding the date of this Agreement that is an affiliate
or associated person of a FINRA member participating in the offer, issuance and sale of the Placement Shares as contemplated by
this Agreement and the Registration Statement and the Prospectus (as determined in accordance with the rules and regulations of
FINRA).


 








(ii)
Compliance with Orders. The Company is in violation of any material judgment, decree, or order of any court, arbitrator
or other governmental authority.


 


(jj)
Sarbanes–Oxley Act. The Company is in material compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”)
that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder
that are effective as of the date hereof and as of the date hereof.


 


(kk)
Disclosure Controls And Procedures. Except as set forth in the Registration Statement and the Prospectus, the Company maintains
systems of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d-15 under the Exchange
Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective
principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with GAAP, including, but not limited to, 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; (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;
and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by references in the Registration
Statement and the Prospectus fairly present the information called for in all material respects and are prepared in accordance
with the Commission’s rules and guidelines applicable thereto. Since the date of the latest audited financial statements
included in the Registration Statement and 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.


 






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(ll)
ERISA. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material
respects with ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of
organizations described in Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations
and published interpretations thereunder (the “Code”) of which the Company is a member. No “reportable
event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit
plan” established or maintained by the Company or any of its ERISA Affiliates. No “employee benefit plan” established
or maintained by the Company or any of its ERISA Affiliates, if such “employee benefit plan” were terminated, would
have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the Company nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any material liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee
benefit plan” established or maintained by the Company or any of its ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is so qualified and, to the knowledge of the Company, nothing has occurred, whether by action or failure
to act, which would cause the loss of such qualification.


 


(mm)
Contracts and Agreements. The agreements and documents described in the Registration Statement and the Prospectus conform
in all material respects to the descriptions thereof contained therein and there are no agreements or other documents required
by the Securities Act to be described in the Registration Statement and the Prospectus or to be filed with the Commission as exhibits
to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized
or described) to which the Company is a party or by which it is or may be bound or affected and (i) that is referred to in the
Registration Statement and the Prospectus, or (ii) is material to the Company’s business, has been duly authorized and validly
executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the
Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of
any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy
of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought. None of such agreements or instruments has been assigned
by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in default thereunder and, to
the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute
a default thereunder. To the best of the Company’s knowledge, performance by the Company of the material provisions of such
agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or
businesses (each, a “Governmental Entity”), including, without limitation, those relating to environmental
laws and regulations.


 


(nn)
Title to Properties. Except as set forth in the Registration Statement and the Prospectus, the Company has good and marketable
title in fee simple to, or has valid rights to lease or otherwise use, all items of real or personal property which are material
to the business of the Company, in each case free and clear of all liens, encumbrances, security interests, claims and defects
that do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company; and all of the leases and subleases material to the business of the Company,
and under which the Company holds properties described in the Registration Statement and the Prospectus, are in full force and
effect, and the Company has not received any notice of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company under any of the leases or subleases mentioned above, or affecting or questioning the rights of the
Company to the continued possession of the leased or subleased premises under any such lease or sublease, which would result in
a Material Adverse Change.


 




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(oo)
No Unlawful Contributions or Other Payments. No payments or inducements have been made or given, directly or indirectly,
to any federal or local official or candidate for, any federal or state office in the United States or foreign offices by the
Company or any of its officers or directors, or, to the knowledge of the Company, by any of its employees or agents or any other
person in connection with any opportunity, contract, permit, certificate, consent, order, approval, waiver or other authorization
relating to the business of the Company, except for such payments or inducements as were lawful under applicable laws, rules and
regulations. Neither the Company, nor, to the knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company, (i) has used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any government
official or employee from corporate funds; or (iii) made any bribe, unlawful rebate, payoff, influence payment, kickback or other
unlawful payment in connection with the business of the Company.


 


(pp)
Foreign Corrupt Practices Act. None of the Company or, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company, is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (collectively, the “FCPA”), including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to
any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or
any candidate for foreign political office, in contravention of the FCPA. The Company has conducted its business in compliance
with the FCPA and has instituted and maintains policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.


 


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


 




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(rr)
OFAC. None of the Company or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or person
acting on behalf of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“OFAC”); and the Company 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 or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.


 


(ss)
Exchange Listing. 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 “RTTR”. Except as disclosed in the Registration Statement and the Prospectus,
there is no action pending by the Company or, to the Company’s knowledge, the Exchange to delist the Common Stock from the
Exchange, nor has the Company received any notification that the Exchange is contemplating terminating such listing. The Company
has no intention to delist the Common Stock from the Exchange or to deregister the Common Stock under the Exchange Act, in either
case, at any time during the period commencing on the date of this Agreement through and including the 90th calendar day after
the termination of this Agreement. The Company has filed an application for listing of the Placement Shares on the Exchange. The
issuance and sale of the Placement Shares under this Agreement does not contravene the rules and regulations of the Exchange.


 


(tt)
Margin Rules. The Company owns no “margin securities” as that term is defined in Regulation U of the Board
of Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds from
the issuance, sale and delivery of the Placement Shares as contemplated by this Agreement and as described in the Registration
Statement and the Prospectus will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security,
for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security
or for any other purpose which might cause any of the shares of Common Stock to be considered a “purpose credit” within
the meanings of Regulation T, U or X of the Federal Reserve Board.


 


(uu)
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, except that the Company is a party to a common stock purchase agreement with Aspire Capital
Fund, LLC, pursuant to which the Company may, from time to time, sell shares of Common Stock to Aspire Capital Fund, LLC.


 


(vv)
Board of Directors. The qualifications of the persons serving as board members of the Company and the overall composition
of the Company’s Board of Directors comply with the applicable requirements of the Exchange Act and the Sarbanes-Oxley Act
and the listing rules of the Exchange applicable to the Company. At least one member of the Audit Committee of the Board of Directors
of the Company qualifies as an “audit committee financial expert,” as such term is defined under Regulation S-K and
the listing rules of the Exchange. In addition, at least a majority of the persons serving on the Board of Directors of the Company
qualify as “independent,” as defined under the listing rules of the Exchange.


 




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(ww)
No Integration. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly
or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that
would cause the offer and sale of the Placement Shares hereunder to be integrated with prior offerings by the Company for purposes
of the Securities Act that would require the registration of any such securities under the Securities Act.


 


(xx)
No Material Defaults. The Company has not 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, could reasonably be expected to result in a
Material Adverse Change. 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, could reasonably be expected to result in a Material Adverse Change.


 


(yy)
Books and Records. The minute books of the Company have been made available to the Sales Agent and counsel for the Sales
Agent, and such books (i) contain a substantially complete summary of all meetings and material actions of the board of directors
(including each board committee) and stockholders of the Company (or analogous governing bodies and interest holders, as applicable)
since the time of its respective incorporation or organization through the date of the latest meeting and action, and (ii) accurately
in all material respects reflect all transactions referred to in such minutes.


 


(zz)
Continued Business. No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends
to discontinue or decrease the rate of business done with the Company, except where such discontinuation or decrease has not resulted
in and could not reasonably be expected to result in a Material Adverse Change.


 


(aaa)
Contracts Affecting Capital. There are no transactions, arrangements or other relationships between and/or among the Company,
any of its affiliates (as such term is defined in Rule 405 under the Securities Act) and any unconsolidated entity, including,
but not limited to, any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially
affect the Company’s liquidity or the availability of or requirements for its capital resources required to be described
or incorporated by reference in the Registration Statement and the Prospectus which have not been described or incorporated by
reference as required.


 


(bbb)
Regulations. The disclosures in the Registration Statement and the Prospectus concerning the effects of federal, state,
local and all foreign regulation on the Company’s business in the past and as currently contemplated are correct in all
material respects and no other such regulations are required to be disclosed in the Registration Statement and the Prospectus
which are not so disclosed.


 




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(ccc)
Regulatory Matters; Compliance. All preclinical and other nonclinical studies and clinical trials conducted by or on behalf
of the Company that are material to the Company have been adequately described in the Registration Statement and the Prospectus,
in all material respects. The clinical trials and nonclinical studies conducted by or on behalf of the Company that are described
in the Registration Statement and the Prospectus or the results of such trials and studies which are referred to in the Registration
Statement and the Prospectus were and, if still ongoing, are being conducted in material compliance with all laws and regulations
applicable thereto in the jurisdictions in which they are being conducted. The descriptions in the Registration Statement and
the Prospectus of the results of such trials and studies are accurate and complete in all material respects and fairly present
the data derived from such trials and studies, and the Company has no knowledge of any clinical trials the aggregate results of
which are inconsistent with or otherwise call into question the results of any clinical trial conducted by or on behalf of the
Company that are described in the Registration Statement and the Prospectus or the results of which are referred to in the Registration
Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, the Company has not received
any written notices or other communications from the FDA, the European Medicines Agency (“EMA”) or any other
governmental agency or authority imposing, requiring, requesting or suggesting a clinical hold, termination, suspension or material
modification of any clinical trial that is described in the Registration Statement and the Prospectus or the results of which
are referred to in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus,
the Company has not received any written notices or other communications from the FDA, the EMA or any other governmental agency,
and otherwise has no knowledge of, or reason to believe that, (i) any investigational new drug application for a potential product
of the Company is or has been rejected or determined to be non-approvable or conditionally approvable; and (ii) any license, approval,
permit or authorization to conduct any clinical trial of any potential product of the Company has been, will be or may be suspended,
revoked, modified or limited.


 


(ddd)
Information Technology. The Company’s information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate
for, and operate and perform in all material respects as required in connection with the operation of the business of the Company
as currently conducted, and to the knowledge of the Company are free and clear of all material bugs, errors, defects, Trojan horses,
time bombs, malware and other corruptants. The Company has implemented and maintained commercially reasonable 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, personally identifiable, sensitive, confidential or
regulated data (“Personal Data”)) used in connection with their businesses, and 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 is presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and
regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data
from unauthorized use, access, misappropriation or modification. The disclosures in the Registration Statement and the Prospectus
concerning the effects of federal, state, local and all foreign regulation on the Company’s business in the past and as
currently contemplated are correct in all material respects and no other such regulations are required to be disclosed in the
Registration Statement and the Prospectus which are not so disclosed. The Company has taken all necessary actions to comply with
the European Union General Data Protection Regulation and all other applicable laws and regulations with respect to Personal Data
that have been announced as of the date hereof as becoming effective within 12 months after the date hereof, and for which any
non-compliance with same would be reasonably likely to create a material liability.


 




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(eee)
Confidentiality and Non-Competitions. To the Company’s knowledge, no director, officer, key employee or consultant
of the Company is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with
any employer or prior employer that could reasonably be expected to materially affect his ability to be and act in his respective
capacity of the Company or be expected to result in a Material Adverse Change.


 


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


 


The
Company acknowledges that the Sales Agent and, for purposes of the opinions to be delivered pursuant to Section 7 hereof,
counsel to the Company and counsel to the Sales Agent, will rely upon the accuracy and truthfulness of the foregoing representations
and hereby consents to such reliance.


 


7.
Covenants of the Company. The Company covenants and agrees with the Sales 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 Sales Agent under the Securities Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), (i) the Company will notify the
Sales 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 Sales Agent’s
reasonable request, any amendments or supplements to the Registration Statement or Prospectus that, in the Sales Agent’s
reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by the Sales Agent
(provided, however, that the failure of the Sales Agent to make such request shall not relieve the Company of any
obligation or liability hereunder, or affect the Sales 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 Sales 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, other than documents
incorporated by reference, relating to the Placement Shares or a security convertible into the Placement Shares unless a copy
thereof has been submitted to the Sales Agent within a reasonable period of time before the filing and the Sales Agent has not
reasonably objected thereto (provided, however, that the failure of the Sales Agent to make such objection shall
not relieve the Company of any obligation or liability hereunder, or affect the Sales 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 Sales Agent
shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement);
(iv) the Company will furnish to the Sales 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 (v) the Company will cause each amendment or supplement to the Prospectus, other than documents incorporated by reference,
to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act (without
reliance on Rule 424(b)(8) of the Securities Act) or, in the case of any documents incorporated by reference, to be filed with
the Commission as required pursuant to the Exchange Act, within the time period prescribed.


 




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(b)
Notice of Commission Stop Orders. The Company will advise the Sales Agent, promptly after it receives notice or obtains
knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or any notice objecting to, or other order preventing or suspending the use of, the Prospectus, of the suspension of the qualification
of the Placement Shares for offering or sale in any jurisdiction, or of the initiation of any proceeding for any such purpose
or any examination pursuant to Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding under
Section 8A of the Securities Act in connection with the offering of the Placement Shares; 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.
Until such time as any stop order is lifted, the Sales Agent shall cease making offers and sales under this Agreement.


 


(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 Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including
in circumstances where such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), the Company
will comply with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before
their respective due dates all reports and any definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during
such period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus
to comply with the Securities Act, the Company will promptly notify the Sales 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.


 




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(d)
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to
be delivered by the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in
circumstances where such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), the Company
will use its commercially reasonable efforts to cause the Placement Shares to be listed on the Exchange and to qualify the Placement
Shares for sale under the securities laws of such jurisdictions as the Sales Agent reasonably designates and to continue such
qualifications in effect so long as required for the distribution of the Placement Shares; provided, however, that
the Company shall not be required in connection therewith to qualify as a foreign corporation or dealer in securities or file
a general consent to service of process in any jurisdiction.


 


(e)
Delivery of Registration Statement and Prospectus. The Company will furnish to the Sales 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 Sales Agent may from time to time reasonably request and, at the
Sales 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 Sales 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 of the Company
(which need not be audited) covering a 12-month period that complies with Section 11(a) and Rule 158 of the Securities Act. The
terms “earnings statement” and “make generally available to its security holders” shall have the meanings
set forth in Rule 158 under the Securities Act.


 


(g)
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated
in accordance with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance
of its obligations hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of
the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement
thereto, (ii) the preparation, issuance and delivery of the Placement Shares, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the Placement Shares to the Sales Agent, (iii) the fees
and disbursements of the counsel, accountants and other advisors to the Company in connection with the transactions contemplated
by this Agreement; (iv) the qualification of the Placement Shares under securities laws in accordance with the provisions of Section
7(d) of this Agreement, including filing fees (provided, however, that any fees or disbursements of counsel
for the Sales Agent in connection therewith shall be paid by the Sales Agent except as set forth in (ix) below), (v) the printing
and delivery to the Sales Agent of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement,
(vi) the fees and expenses incurred in connection with the listing or qualification of the Placement Shares for trading on the
Exchange, (vii) the fees and expenses of the transfer agent or registrar for the Common Stock; (viii) filing fees and expenses,
if any, of the Commission and the FINRA Corporate Financing Department (provided, however, that any fees or disbursements
of counsel for the Sales Agent in connection therewith shall be paid by the Sales Agent except as set forth in (ix) below) and
(ix) the Company shall reimburse the Sales Agent for its reasonable and documented out-of-pocket expenses (including but not limited
to the reasonable and documented fees and expenses of counsel to the Sales Agent) in an amount not to exceed $30,000.


 




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


 


(i)
Notice of Other Sales. The Company (I) shall provide the Sales Agent notice as promptly as reasonably possible before it offers
to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other than Placement
Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Common Stock,
or 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 Sales 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 fifth (5th) Trading Day immediately following the date of such suspension or termination),
and (II) 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 shares of Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for shares of Common Stock, warrants
or any rights to purchase or acquire, shares of Common Stock prior to the termination of this Agreement; provided, however,
that such notice requirements or restrictions, as the case may be, will not be required in connection with the Company’s
issuance or sale of (i) shares of Common Stock, options to purchase shares of Common Stock, other equity awards or shares of Common
Stock issuable upon the exercise of options or other equity awards, pursuant to any employee or director stock option or benefits
plan, stock ownership plan or dividend reinvestment plan of the Company whether now in effect or hereafter implemented, (ii) shares
of Common Stock issuable upon 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 (including by email
correspondence) to the Sales Agent and (iii) shares of Common Stock or securities convertible into or exchangeable for shares
of Common Stock as consideration for mergers, acquisitions, sale or purchase of assets or other business combinations or strategic
alliances occurring after the date of this Agreement which are not issued for capital raising purposes.


 


(j)
Change of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a
Placement Notice or sell Placement Shares, advise the Sales 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 provided to the Sales Agent pursuant to this Agreement.


 




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(k)
Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Sales Agent
or its agents in connection with the transactions contemplated hereby, including, without limitation, providing information and
making available documents and senior corporate officers, during regular business hours and at the Company’s principal offices,
as the Sales Agent may reasonably request.


 


(l)
Required Filings Relating to Placement of Placement Shares. The Company shall set forth in each Annual Report on Form 10-K
and Quarterly Report on Form 10-Q filed by the Company with the Commission in respect of any quarter in which sales of Placement
Shares were made by or through the Sales Agent under this Agreement, with regard to the relevant period, the amount of Placement
Shares sold to or through the Sales Agent, the Net Proceeds to the Company and the compensation payable by the Company to the
Sales Agent with respect to such sales of Placement Shares. To the extent that the filing of a prospectus supplement with the
Commission with respect to any sales of Placement Shares becomes required under Rule 424(b) under the Securities Act, the Company
agrees that, on or before 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, which prospectus supplement will set forth,
with regard to the relevant period, the amount of Placement Shares sold to or through the Sales Agent, the Net Proceeds to the
Company and the compensation payable by the Company to the Sales 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. The Company shall afford the Sales Agent and its counsel with
a reasonable opportunity to review and comment upon, shall consult with the Sales Agent and its counsel on the form and substance
of, and shall give due consideration to all such comments from the Sales Agent or its counsel on, any such filing prior to the
issuance, filing or public disclosure thereof; provided, however, that the Company shall not be required to submit for review
(A) any portion of any periodic reports filed with the Commission under the Exchange Act other than the specific disclosure relating
to any sales of Placement Shares and (B) any disclosure contained in periodic reports filed with the Commission under the Exchange
Act if it shall have previously provided the same disclosure for review in connection with a previous filing.


 


(m)
Representation Dates; Certificate. On or prior to the date the first Placement Notice is given hereunder and each time
the Company (i) files the Prospectus relating to the Placement Shares or amends or supplements the Registration Statement or the
Prospectus relating to the Placement Shares (other than (A) a prospectus supplement filed in accordance with Section 7(l)
of this Agreement or (B) a supplement or amendment that relates to an offering of securities other than the Placement Shares)
by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of document(s) by reference to
the Registration Statement or the Prospectus relating to the Placement Shares; (ii) files an annual report on Form 10-K under
the Exchange Act (including any Form 10-K/A containing amended financial information or a material amendment to the previously
filed Form 10-K); (iii) files a quarterly report on Form 10-Q under the Exchange Act; or (iv) files a current report on Form 8-K
containing amended financial information (other than an earnings release, to “furnish” information pursuant to Items
2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of 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 Sales Agent within three (3) Trading Days after each Representation Date with
a certificate, in the form attached hereto as Exhibit 7(m). The requirement to provide a certificate under this Section
7(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver
shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar
quarter 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 Sales Agent with a certificate under this Section 7(m), then before the Company delivers the Placement
Notice or the Sales Agent sells any Placement Shares, the Company shall provide the Sales Agent with a certificate, in the form
attached hereto as Exhibit 7(m), dated the date of the Placement Notice.


 




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(n)
Legal Opinion. On or prior to the date the first Placement Notice is given hereunder, the Company shall cause to be furnished
to the Sales Agent the written opinion and negative assurance of Reed Smith LLP, as counsel to the Company, or other counsel reasonably
satisfactory to the Sales Agent (“Company Counsel”), in each case substantially in the forms previously
agreed between the Company and the Sales Agent. Thereafter, within three (3) Trading Days after each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable
pursuant to Section 7(m), and not more than once per calendar quarter, the Company shall cause to be furnished to the Sales
Agent the written opinion and negative assurance of Company Counsel substantially in the forms previously agreed between the Company
and the Sales Agent, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, that if Company Counsel has previously furnished to the Sales Agent such written opinion and
negative assurance of such counsel, in each case substantially in the forms previously agreed between the Company and the Sales
Agent, then Company Counsel may, in respect of any future Representation Date, furnish the Sales Agent with a letter signed by
such counsel (each, a “Reliance Letter”) in lieu of such opinion and negative assurance of such counsel
to the effect that the Sales Agent may rely on the prior opinion and negative assurance of such counsel delivered pursuant to
this Section 7(n) to the same extent as if it were dated the date of such Reliance Letter (except that statements in such
prior opinion and negative assurance shall be deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such Reliance Letter).


 


(o)
Comfort Letter. On or prior to the date the first Placement Notice is given hereunder and within three (3) Trading Days
after each subsequent Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to
Section 7(m) for which no waiver is applicable pursuant to Section 7(m), other than a Representation Date under Section 7(m)(iii)
or Section 7(m)(iv) unless with respect to a Representation Date under Section 7(m)(iv) the Sales Agent reasonably
requests delivery thereof, the Company shall cause its independent accountants to furnish the Sales Agent letters (the “Comfort
Letters”), dated the date that the Comfort Letter is delivered, in form and substance satisfactory to the Sales
Agent, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act,
the Exchange Act and the rules and regulations of the PCAOB and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (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 the Sales Agent 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.


 




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(p)
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or
that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Common Stock or (ii) sell, bid for, or purchase shares of Common Stock
in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Sales
Agent.


 


(q)
Insurance. The Company shall maintain insurance in such amounts and covering such risks as is reasonable and customary
for the business in which it is engaged.


 


(r)
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that it is not
and, after giving effect to the offering and sale of the Placement Shares and the application of proceeds therefrom as described
in the Prospectus, will not be, an “investment company” within the meaning of such term under the Investment Company
Act.


 


(s)
Securities Act and Exchange Act. The Company will use its reasonable best efforts to comply with all requirements imposed
upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance
of sales of, or dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.


 


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


 


(u)
Sarbanes-Oxley Act. The Company will use its reasonable best efforts to comply with all effective applicable provisions
of the Sarbanes-Oxley Act.


 


(v)
Transfer Agent. The Company shall maintain, at its sole expense, a registrar and transfer agent for the Common Stock.


 






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8.
Conditions to the Sales Agent’s Obligations. The obligations of the Sales 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 Sales Agent of a due diligence review
satisfactory to the Sales Agent in its reasonable judgment, and to the continuing satisfaction (or waiver by the Sales Agent in
its sole discretion) of the following additional conditions:


 


(a)
Registration Statement Effective. The Registration Statement shall be effective and shall be available for the sale of
all Placement Shares contemplated to be issued by any Placement Notice which have not yet been issued and sold pursuant to such
Registration Statement.


 


(b)
Securities Act Filings Made. The Company shall have filed with the Commission the Prospectus Supplement pursuant to Rule
424(b) under the Securities Act not later than the Commission’s close of business on the second Business Day following the
date of this Agreement. All other filings with the Commission required by Rule 424(b) or Rule 433 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(b) (without reliance on Rule 424(b)(8) of the Securities Act) or Rule 433, as applicable.


 


(c)
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; (iv) the occurrence of any event that makes any material statement made in the Registration Statement or the
Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in the Registration Statement, related Prospectus or such documents so that, in the
case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of
the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.


 


(d)
No Misstatement or Material Omission. The Sales 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 Sales Agent’s reasonable
opinion is material, or omits to state a fact that in the Sales Agent’s reasonable opinion is material and is required to
be stated therein or is necessary to make the statements therein not misleading.


 






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(e)
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 Change or any development that could reasonably be expected to result in a Material Adverse Change, or any downgrading
in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by any rating
organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of
the Company’s securities (other than asset backed securities), the effect of which, in the case of any such action by a
rating organization described above, in the reasonable judgment of the Sales 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 by this Agreement and the Prospectus.


 


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


 


(g)
Legal Opinions. The Sales Agent shall have received the opinion and negative assurance of Company Counsel required to be
delivered pursuant Section 7(n) on or before the date on which such delivery of such opinion and negative assurance is
required pursuant to Section 7(n).


 


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


 


(i)
Officer’s Certificate. On or prior to the date the first Placement Notice is given hereunder, the Sales Agent shall
have received a certificate, signed on behalf of the Company by its President and Chief Executive Officer, certifying as to (i)
the Certificate of Incorporation of the Company, (ii) the By-laws of the Company, (iii) the resolutions of the Board of Directors
of the Company (or a committee thereof) 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.


 


(j)
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.


 


(k)
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m),
the Company shall have furnished to the Sales Agent such appropriate further opinions, certificates, letters and documents as
the Sales Agent may have reasonably requested. All such opinions, certificates, letters and other documents shall have been in
compliance with the provisions hereof. The Company will furnish the Sales Agent with such conformed copies of such opinions, certificates,
letters and other documents as the Sales Agent shall have reasonably requested.


 


(l)
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 an application for listing of the Placement Shares on the Exchange
at, or prior to, the issuance of any Placement Notice.


 




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(m)
No Termination Event. There shall not have occurred any event that would permit the Sales Agent to terminate this Agreement
pursuant to Section 11(a).


 


(n)
FINRA. The Sales Agent shall have received a letter from the Corporate Financing Department of FINRA confirming that such
department has determined to raise no objection with respect to the fairness or reasonableness of the terms and arrangements related
to the sale of the Placement Shares pursuant to this Agreement.


 


9.
Indemnification and Contribution.


 


(a)
Company Indemnification. The Company agrees to indemnify and hold harmless the Sales Agent, the directors, officers, members,
partners, employees and agents of the Sales Agent each broker dealer affiliate of the Sales Agent, and each the Sales Agent Affiliate,
if any, from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and
all reasonable investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement
(in accordance with Section 9(c)) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying
parties or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which
the Sales Agent, or any such person, may become subject under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or
are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement thereto or in any Issuer Free Writing Prospectus or in
any application or other document executed by or on behalf of the Company or based on written information furnished by or on behalf
of the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof or filed with
the Commission, (y) the omission or alleged omission to state in any such document a material fact required to be stated in it
or necessary to make the statements in it not misleading or (z) any breach by any of the indemnifying parties of any of their
respective representations, warranties and agreements contained in this Agreement; provided, however, that this indemnity
agreement shall not apply to the extent that such loss, claim, liability, expense or damage arises from the sale of the Placement
Shares pursuant to this Agreement and is caused directly by an untrue statement or omission made in reliance upon and in strict
conformity with written information relating to the Sales Agent and furnished to the Company by the Sales Agent expressly for
inclusion in any document as described in clause (x) of this Section 9(a). This indemnity agreement will be in addition
to any liability that the Company might otherwise have.


 


(b)
The Sales Agent Indemnification. The Sales Agent agrees to indemnify and hold harmless the Company and its directors and
each officer of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common
control with the Company (each, a “Company Affiliate”) from and against any and all losses, claims,
liabilities, expenses and damages (including, but not limited to, any and all reasonable investigative, legal and other expenses
incurred in connection with, and any and all amounts paid in settlement (in accordance with Section 9(c)) of, any action,
suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified party and any
third party, or otherwise, or any claim asserted), as and when incurred, to which any such Company Affiliate, may become subject
under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly, on (x) any
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any
amendment or supplement thereto, or (y) the omission or alleged omission to state in any such document a material fact required
to be stated in it or necessary to make the statements in it not misleading; provided, however, that this indemnity
agreement shall apply only to the extent that such loss, claim, liability, expense or damage is caused directly by an untrue statement
or omission made in reliance upon and in strict conformity with written information relating to the Sales Agent and furnished
to the Company by the Sales Agent expressly for inclusion in any document as described in clause (x) of this Section 9(b).


 




    	30



    	 



    

 


(c)
Procedure. Any party that proposes to assert the right to be indemnified under this Section 9 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 9, notify each such indemnifying party of the commencement of such action, enclosing
a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from
(i) any liability that it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability
that it may have to any indemnified party under the foregoing provision of this Section 9 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action
is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will
be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will
not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable
costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be
at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases
the reasonable 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 fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding relating to the matters contemplated by this Section 9 (whether or not any indemnified
party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or proceeding.


 




    	31



    	 



    

 


(d)
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided
for in the foregoing paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held
to be unavailable from the Company or the Sales Agent, the Company and the Sales 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, but after deducting any contribution
received by the Company from persons other than the Sales Agent, such as persons who control the Company within the meaning of
the Securities Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be
liable for contribution) to which the Company and the Sales 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 Sales Agent on the other. The relative benefits
received by the Company on the one hand and the Sales 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 Sales 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 law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault
of the Company, on the one hand, and the Sales Agent, on the other, with respect to the statements or omission that resulted in
such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations
with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Sales 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 Sales Agent agree that it would not be just
and equitable if contributions pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred
to above in this Section 9(d) shall be deemed to include, for the purpose of this Section 9(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim
to the extent consistent with Section 9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d),
the Sales 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
9(d), any person who controls a party to this Agreement within the meaning of the Securities Act will have the same rights
to contribution as that party (and any officers, directors, members, partners, employees or agents of the Sales Agent and each
broker dealer affiliate of the Sales Agent will have the same rights to contribution as the Sales Agent), and each officer of
the Company who signed the Registration Statement and each director of the Company will have the same rights to contribution as
the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim for contribution may be made under this Section
9(d), will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve
that party or parties from whom contribution may be sought from any other obligation it or they may have under this Section
9(d) except to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses
of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section
9(c) hereof, no party will be liable for contribution with respect to any action or claim settled without its written consent
if such consent is required pursuant to Section 9(c) hereof.


 




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10.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9
of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Sales Agent, any
controlling person of the Sales Agent, or the Company (or any of their respective officers, directors, members or controlling
persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.


 


11.
Termination.


 


(a)
The Sales Agent shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i)
any Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred
that, in the reasonable judgment of the Sales Agent, may materially impair the ability of the Sales Agent to sell the Placement
Shares hereunder, (ii) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed
hereunder; provided, however, in the case of any failure of the Company to deliver (or cause another person to deliver)
any certification, opinion, or letter required under Sections 7(m), 7(n), 7(o) or 7(p), the Sales
Agent’s right to terminate shall not arise unless such failure to deliver (or cause to be delivered) continues for more
than thirty (30) days from the date such delivery was required, (iii) any other condition of the Sales Agent’s obligations
hereunder is not fulfilled, or (iv) any suspension or limitation of trading in the Placement Shares or in securities generally
on the Exchange shall have occurred (including automatic halt in trading pursuant to market-decline triggers, other than those
in which solely program trading is temporarily halted), or a major disruption of securities settlements or clearing services in
the United States shall have occurred, or minimum prices for trading have been fixed on the Exchange. Any such termination shall
be without liability of any party to any other party except that the provisions of Section 7(g) (Expenses), Section
9 (Indemnification and Contribution), Section 10 (Representations and Agreements to Survive Delivery), Section 11(f),
Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall remain in
full force and effect notwithstanding such termination. If the Sales Agent elects to terminate this Agreement as provided in this
Section 11(a), the Sales Agent shall provide the required notice as specified in Section 12 (Notices).


 




    	33



    	 



    

 


(b)
The Company shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to terminate
this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section
11(f), Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.


 


(c)
The Sales Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to
terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without
liability of any party to any other party except that the provisions of Section 7(g), Section 9, Section 10,
Section 11(f), Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such
termination.


 


(d)
Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the earlier to
occur of (i) issuance and sale of all of the Placement Shares to or through the Sales Agent on the terms and subject to the conditions
set forth herein and (ii) the expiration of the Registration Statement on the third (3rd) anniversary of the initial
effective date of the Registration Statement pursuant to Rule 415(a)(5) under the Securities Act; provided that the provisions
of Section 7(g), Section 9, Section 10, Section 11(f), Section 16 and Section 17 hereof
shall remain in full force and effect notwithstanding such termination.


 


(e)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c)
or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination
by mutual agreement shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section
11(f), Section 16 and Section 17 shall remain in full force and effect.


 


(f)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Sales 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 termination shall not become effective until the close of business on such Settlement Date and such Placement Shares shall
settle in accordance with the provisions of this Agreement.


 


12.
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Sales Agent, shall be delivered
to:


 


A.G.P./Alliance
Global Partners


590
Madison Avenue


New
York, NY 10022


Attention:
Tom Higgins


Email:
atm@allianceg.com


 




    	34



    	 



    

 


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


 


Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


666
Third Avenue


New
York, New York 10017


Attention:
Anthony J. Marsico, Esq.


Facsimile:
(212) 983-3115


 


and
if to the Company, shall be delivered to:


 


Ritter
Pharmaceuticals, Inc.


1880
Century Park East, Suite 1000


Los
Angeles, CA 90067


Attention:
Chief Executive Officer


Facsimile:
(310) 919-1600


 


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


 


Reed
Smith LLP


1901
Avenue of the Stars


Suite
700


Los
Angeles, CA 90067-6708


Attention:
Michael Sanders, Esq.


Facsimile:
(310) 734-5299


 


Each
party may change such address for notices by sending to the other party 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) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) 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
12 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 confirmation of receipt by the receiving party (other
than pursuant to auto-reply). 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.


 




    	35



    	 



    

 


13.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Sales Agent
and their respective successors and permitted assigns and, as to Sections 5(b) and 9, the other indemnified parties
specified therein. 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 other person 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 Sales Agent may assign its rights and obligations hereunder to an affiliate of the Sales
Agent without obtaining the Company’s consent.


 


14.
Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement
shall be adjusted to take into account any share split, share dividend or similar event effected with respect to the Common Stock.


 


15.
Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) and any other writing entered into by the parties relating to this Agreement 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 Sales 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.


 


16.
Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York, without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to
the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action
or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such
party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.


 




    	36



    	 



    

 


17.
Waiver of Jury Trial. The Company and the Sales Agent each hereby irrevocably waives any right it may have to a trial by
jury in respect of any claim based upon or arising out of this Agreement or any transaction contemplated hereby.


 


18.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:


 


(a)
the Sales Agent is acting solely as agent in connection with the sale of the Placement Shares 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 Sales
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 the Sales Agent has advised or is advising the Company on other matters, and the Sales 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)
the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;


 


(c)
the Sales Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate;


 


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


 


(e)
the Company waives, to the fullest extent permitted by law, any claims it may have against the Sales Agent, for breach of fiduciary
duty or alleged breach of fiduciary duty and agrees that the Sales Agent shall have no liability (whether direct or indirect,
in contract, tort or otherwise) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty
claim on behalf of or in right of the Company, including stockholders, partners, employees or creditors of the Company.


 


19.
Use of Information. The Sales Agent may not provide any information gained in connection with this Agreement and the transactions
contemplated by this Agreement, including due diligence, to any third party other than its legal counsel advising it on this Agreement
unless expressly approved by the Company in writing.


 


20.
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 transmission.


 


21.
Effect of Headings; Knowledge of the Company. The section and Exhibit headings herein are for convenience only and shall
not affect the construction hereof. All references in this Agreement to the “knowledge of the Company” or the “Company’s
knowledge” or similar qualifiers shall mean the actual knowledge of the directors and officers of the Company, after due
inquiry.


 


22.
Definitions. As used in this Agreement, the following term has the meaning set forth below:


 


(a)
“Applicable Time” means the date of this Agreement, each Representation Date, each date on which a Placement
Notice is given, each Point of Sale, and each Settlement Date.


 


[Remainder
of Page Intentionally Blank]


 




    	37



    	 



    

 


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


 


	 	Very
    truly yours,
	 	 
	 	RITTER
    PHARMACEUTICALS, INC.
	 	 	 
	 	By:
    	/s/ Andrew J. Ritter
	 	Name:	Andrew J. Ritter




	 	Title:	Chief
    Executive Officer
	 	 	 
	 	ACCEPTED
    as of the date first-above written:
	 	 
	 	A.G.P./ALLIANCE
    GLOBAL PARTNERS
	 	 	 
	 	By:
    	/s/ Tom
    Higgins
	 	Name:
    	Tom
    Higgins
	 	Title:	Managing
    Director


 




    	 



    	 



    

 


Schedule
1


 





 



 


Form
of Placement Notice


 





 



 


	 	From:
    	Ritter
    Pharmaceuticals, Inc.
	 	 	 
	 	To:
    	A.G.P./Alliance
    Global Partners
	 	 	Attention:
    [●]
	 	 	 
	 	Subject:
    	Placement
    Notice
	 	 	 
	 	Date:
    	[●],
    201[●]


 


Ladies
and Gentlemen:


 


Pursuant
to the terms and subject to the conditions contained in the Sales Agreement (the “Sales Agreement”)
between Ritter Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and A.G.P./Alliance Global
Partners (the “Sales Agent”), dated October [●], 2019, the Company hereby requests that the Sales
Agent sell up to [●] shares of the Company’s common stock, par value $0.001 per share (the “Placement Shares”),
at a minimum market price of $[●] per share, during the time period beginning [month, day, time] and ending [month, day,
time] [and with no more than [●] Placement Shares sold in any one Trading Day].


 


[The
Company may include such other sale parameters as it deems appropriate.]


 


Capitalized
terms used and not defined herein shall have the respective meanings assigned to them in the Sales Agreement.


 




    	 



    	 



    

 


Schedule
2


 


Notice
Parties


 


Ritter
Pharmaceuticals, Inc.


 


Andrew
J. Ritter (andrew@ritterpharma.com)


 


John
W. Beck (john@ritterpharma.com)


 


With
copies to:


 


Michael
Sanders (msanders@reedsmith.com)


 


The
Sales Agent


 


Tom
Higgins (thiggins@allianceg.com)


 


With
copies to:


 


atm@allianceg.com


 




    	 



    	 



    

 


Schedule
3


 


Compensation


 


The
Company shall pay to the Sales Agent in cash, upon each sale of Placement Shares through the Sales Agent pursuant to this Agreement,
an amount equal to 3.00% of the aggregate gross proceeds from each sale of Placement Shares.*


 





 






*
The foregoing rate of compensation shall not apply when the Sales Agent purchases Placement Shares on a principal basis, in which
case the Company may sell the Placement Shares to the Sales Agent as principal at a price to be mutually agreed upon by the Company
and the Sales Agent at the relevant Point of Sale pursuant to the applicable Placement Notice (it being hereby acknowledged and
agreed that the Sales Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to the Sales
Agreement, except as otherwise agreed by the Sales Agent and the Company in writing and expressly set forth in a Placement Notice).


 




    	 



    	 



    

 


Exhibit
7(m)


 


OFFICER
CERTIFICATE


 


The
undersigned, the duly qualified and appointed _____________________ of Ritter Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), does hereby certify in such capacity and on behalf of the Company, pursuant to Section
7(m) of the Sales Agreement, dated October [__], 2019 (the “Sales Agreement”), between the Company
and A.G.P./Alliance Global Partners, that:


 


	 	(i)	the
    representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations
    and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse
    Change, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of
    the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true
    and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications
    or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof
    with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties
    that speak solely as of a specific date and which were true and correct as of such date; and;
	 	 	 
	 	(ii)	the
    Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to
    the Sales Agreement at or prior to the date hereof;
	 	 	 
	 	(iii)	as
    of the date hereof, (i) the Registration Statement does not contain any untrue statement of a material fact or omit to state
    a material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) the
    Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated
    therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not
    misleading and (iii) no event has occurred as a result of which it is necessary to amend or supplement the Registration Statement
    or the Prospectus in order to make the statements therein not untrue or misleading for clauses (i) and (ii) above, respectively,
    to be true and correct;
	 	 	 
	 	(iv)	there
    has been no Material Adverse Change since the date as of which information is given in the Prospectus, as amended or supplemented;
	 	 	 
	 	(v)	the
    Company does not possess any material non-public information; and
	 	 	 
	 	(vi)	the
    aggregate offering price of the Placement Shares that may be issued and sold pursuant to the Sales Agreement and the maximum
    number or amount of Placement Shares that may be sold pursuant to the Sales Agreement have been duly authorized by the Company’s
    board of directors or a duly authorized committee thereof.


 


Terms
used herein and not defined herein have the meanings ascribed to them in the Sales Agreement.


 


	Dated:
    	 	 	By:	                  
	 	 	 	Name:	




	 	 	 	Title: