Exhibit 10.1


 


Ocugen, Inc.

Shares of Common Stock


(par value $0.01 per share)


 


Controlled Equity OfferingSM


 


Sales Agreement


 


June 12, 2020


 


Cantor Fitzgerald & Co.


499 Park Avenue


New York, NY 10022


 


Ladies and Gentlemen:


 


Ocugen, Inc., a Delaware
corporation (the “Company”), confirms its agreement (this “Agreement”) with
Cantor Fitzgerald & Co. (the “Agent”), as follows:


 


1.             Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the
terms and subject to the conditions set forth herein, it may issue and sell through the Agent, shares of common stock (the “Placement
Shares”) of the Company, par value $0.01 per share (the “Common Stock”); provided,
however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares
that would (a) exceed the number or dollar amount of shares of Common Stock registered on the effective Registration Statement
(defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued shares of Common
Stock (less shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company
or otherwise reserved from the Company’s authorized capital stock), (c) exceed the number or dollar amount of shares of Common
Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number
or dollar amount of shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser
of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein,
the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares
issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation
in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration
Statement (as defined below) filed by the Company and was declared effective by the Securities and Exchange Commission (the “Commission”)
on May 5, 2020, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement
to issue Common Stock.


 






    	 



     


    

 


The Company has filed,
in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and
the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form S-3 (File No. 333-237456), including a base prospectus, relating to certain securities, including the Placement
Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed
or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and the rules and regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus
included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be
issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the
Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented, by the
Prospectus Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one
or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus
supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context
otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference
therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant
to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B
of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus
or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it
may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus
Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act
Regulations, together with the then issued Issuer Free Writing Prospectus(es) (defined below), is herein called the “Prospectus.”


 


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


 






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2.             Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify the Agent by email notice (or other method mutually agreed to by the parties) of the number of Placement Shares
to be issued, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that
may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”),
the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from
the Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may
be amended from time to time. The Placement Notice shall be effective unless and until (i) the Agent declines in writing to
accept the terms contained therein for any reason, in its sole discretion, which declination must occur within two (2) Business
Days of the receipt of the Placement Notice, (ii) the entire amount of the Placement Shares thereunder have been sold, (iii) the
Company amends, supersedes, suspends or terminates the Placement Notice or (iv) this Agreement has been terminated under the
provisions of Section 12. The amount of any discount, commission or other compensation to be paid by the Company to the
Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule
2. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with
respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Agent and the Agent
does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and
herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.


 


3.             Sale of Placement Shares by the Agent.


 


(a)              
Subject to the provisions of Section 5(a), the Agent, for the period specified in the Placement Notice, will use
its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws,
rules and regulations and the rules of the Nasdaq Stock Market, to sell the Placement Shares up to the amount specified, and otherwise
in accordance with the terms of such Placement Notice. The Agent will provide written confirmation to the Company no later than
the opening of the Trading Day (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
Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company,
with an itemization of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives
from such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement Shares by any method permitted by law
deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Securities Act Regulations, including
sales made directly on or through the Nasdaq Capital Market (the “Exchange”) or any other existing trading
market for the Common Stock, in negotiated transactions at market prices prevailing at the time of sale or at prices related to
such prevailing market prices and/or any other method permitted by law. “Trading Day” means any day on
which Common Stock is traded on the Exchange.


 


(b)              
While a Placement Notice is in effect, the Agent shall not engage in (i) any short sale of any security of the Company,
as defined in Regulation SHO or (ii) any market making bidding, stabilization or other trading activity with regard to the Common
Stock or related derivative securities, in each case, if such activity would be prohibited under Regulation M or other anti-manipulation
rules under the Securities Act.


 


4.             Suspension of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email
correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence
is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed
immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth
on Schedule 3), suspend any sale of Placement Shares (a “Suspension”); provided, however,
that such Suspension shall not affect or impair any party’s obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. While a Suspension is in effect any obligation under Sections 7(l), 7(m), and
7(n) with respect to the delivery of certificates, opinions, or comfort letters to the Agent, shall be waived. Each of the
parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to
one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.


 






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5.             Sale and Delivery to the Agent; Settlement.


 


(a)              
Sale of Placement Shares.  On the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless
the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the
terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares up to the
amount specified, and otherwise in accordance with the terms of such Placement Notice. The Company acknowledges and agrees that
(i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability
or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure
by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law
and regulations to sell such Placement Shares as required under this Agreement and (iii) the Agent shall be under no obligation
to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company.


 


(b)              
Settlement of Placement Shares.  Unless otherwise specified in the applicable Placement Notice, settlement
for sales of Placement Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way
trading) following the date on which such sales are made (each, a “Settlement Date”). The Agent shall
notify the Company of each sale of Placement Shares no later than the opening of the Trading Day immediately following the Trading
Day on which it has made sales of Placement Shares hereunder. The amount of proceeds to be delivered to the Company on a Settlement
Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate
sales price received by the Agent, after deduction for (i) the Agent’s commission, discount or other compensation for such
sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any Governmental Authority
in respect of such sales.


 


(c)              
 Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided
the Agent shall have given the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at
The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be
mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good
deliverable form. On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated
by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver Placement Shares on a Settlement Date, through no fault of the Agent, the Company agrees
that in addition to and in no way limiting the rights and obligations set forth in Section 10(a) hereto, it will (i) hold
the Agent harmless against any loss, claim, damage, or expense (including reasonable and documented legal fees and expenses), as
incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to
the Agent (without duplication) any commission, discount, or other compensation to which it would otherwise have been entitled
absent such default.


 






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


 


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


 


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


 


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


 






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


 


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


 


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


 






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


 


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


 


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


 






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


 


(i)                
No Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration
Statement, the Prospectus and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein),
there has not been (i) any Material Adverse Effect or the occurrence of any development that the Company reasonably expects will
result in a Material Adverse Effect, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole,
(iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company
or any Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any material change in the capital
stock or outstanding long-term indebtedness of the Company or any of its Subsidiaries (other than as a result of (a) the sale of
Placement Shares, (b) the issuance or vesting of equity awards under the Company’s existing equity incentive or stock option
plans or (c) the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, shares
of Common Stock outstanding on the date hereof) or (v) any dividend or distribution of any kind declared, paid or made on the capital
stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed
in the Registration Statement or Prospectus (including any document deemed incorporated by reference therein).


 


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


 






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


 


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


 


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


 


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


 






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


 


(p)              
Enforceability of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus,
other than such agreements that have expired by their terms or whose termination is disclosed in the Registration Statement and
the Prospectus, are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms,
except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions
of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof, except
for any unenforceability that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.


 


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


 






    	 	-10-	 



     


    

 


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


 


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


 






    	 	-11-	 



     


    

 


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


 


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


 


(v)              
Market Capitalization. At the time the Registration Statement was originally declared effective, and at the time
the Company’s most recent Annual Report on Form 10-K was filed with the Commission, the Company met the then-applicable requirements
for the use of Form S-3 under the Securities Act, including, but not limited to, General Instruction I.B.6 of Form S-3. The aggregate
market value of the outstanding voting and non-voting common equity (as defined in Securities Act Rule 405) of the Company
held by persons other than affiliates of the Company (pursuant to Securities Act Rule 144, those that directly, or indirectly through
one or more intermediaries, control, or are controlled by, or are under common control with, the Company)  (the “Non-Affiliate
Shares”), was equal to approximately $48.5 million  (calculated by multiplying (x) the highest price at which
the common equity of the Company closed on the Exchange within 60 days of the date of this Agreement times (y) the number of Non-Affiliate
Shares). The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company
for at least 12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10
information (as defined in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting
its status as an entity that is not a shell company.


 






    	 	-12-	 



     


    

 


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


 


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


 


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


 


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


 


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


 






    	 	-13-	 



     


    

 


(bb)          
Title to Real and Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company
and its Subsidiaries have good and marketable title in fee simple to all items of real property owned by them, good and valid title
to all personal property (other than Intellectual Property, which is addressed in Section 6(t) above), described in the Registration
Statement or Prospectus as being owned by them, in each case free and clear of all liens, encumbrances and claims, except those
matters that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and any
of its Subsidiaries or (ii) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Any real or personal property described in the Registration Statement or Prospectus as being leased by the Company and any of its
Subsidiaries is held by them under valid, existing and enforceable leases, except those that (A) do not materially interfere with
the use made or proposed to be made of such property by the Company or any of its Subsidiaries or (B) would not be reasonably expected,
individually or in the aggregate, to have a Material Adverse Effect. Each of the properties of the Company and its Subsidiaries
complies with all applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations
and laws relating to access to such properties), except if and to the extent disclosed in the Registration Statement or Prospectus
or except for such failures to comply that would not, individually or in the aggregate, reasonably be expected to interfere in
any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise
have a Material Adverse Effect. None of the Company or its subsidiaries has received from any Governmental Authorities any notice
of any condemnation of, or zoning change affecting, the properties of the Company and its Subsidiaries, and the Company knows of
no such condemnation or zoning change which is threatened, except for such that would not reasonably be expected to interfere in
any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise
have a Material Adverse Effect, individually or in the aggregate.


 


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


 






    	 	-14-	 



     


    

 


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


 


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


 


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


 


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


 


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


 






    	 	-15-	 



     


    

 


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


 


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


 


(kk)          
Underwriter Agreements. Except as disclosed in the Registration Statement and the Prospectus, the Company is not
a party to any agreement with an agent or underwriter for any other “at the market” or continuous equity transaction.


 


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


 


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


 






    	 	-16-	 



     


    

 


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


 


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


 


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


 


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


 






    	 	-17-	 



     


    

 


(rr)             
Status Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under
the Securities Act at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the
Placement Shares.


 


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


 


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


 


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


 


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


 






    	 	-18-	 



     


    

 


(B)  located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country
or territory (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region of the Ukraine) (the “Sanctioned
Countries”)).


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	-19-	 



     


    

 


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


 


(yy)          
Cybersecurity. The Company and its subsidiaries’ information technology assets and equipment, computers, systems,
networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for,
and operate and perform in all material respects as required in connection with the operation of the business of the Company as
currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants.
The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity,
continuous operation, redundancy and security of all IT Systems and data, including all “Personal Data” (defined below)
and all sensitive, confidential or regulated data (“Confidential Data”) used in connection with their businesses. “Personal
Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security
number or tax identification number, driver’s license number, passport number, credit card number, bank information, or customer
or account number; (ii) any information which would qualify as “personally identifying information” under the Federal
Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; (iv) any information which would qualify
as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended
by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); (v) any “personal
information” as defined by the California Consumer Privacy Act (“CCPA”); and (vi) any other piece of information
that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data
related to an identified person’s health or sexual orientation. There have been no breaches, violations, outages or unauthorized
uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify
any other person, nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries
are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any
court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems, Confidential Data, and Personal Data and to the protection of such IT Systems, Confidential Data, and
Personal Data from unauthorized use, access, misappropriation or modification.


 






    	 	-20-	 



     


    

 


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


 


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


 


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


 






    	 	-21-	 



     


    

 


(b)              
Notice of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains
knowledge thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. The Company
will advise the Agent promptly after it receives any request by the Commission for any amendments to the Registration Statement
or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to
the offering of the Placement Shares or for additional information related to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus.


 


(c)              
Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares
is required to be delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares (including
in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company
will comply in all material respects 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 the Company has omitted any information from the Registration Statement pursuant to Rule 430B under the Securities
Act, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant
to said Rule 430B and to notify the Agent promptly of all such filings if not available on EDGAR. If during such period any event
occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply
with the Securities Act, the Company will promptly notify the Agent to suspend the offering of Placement Shares during such period
and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as
to correct such statement or omission or effect such compliance; provided, however, that the Company may delay such amendment or
supplement if, in the reasonable judgment of the Company, it is in the best interests of the Company to do so.


 






    	 	-22-	 



     


    

 


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


 


(e)              
Delivery of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the
expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference
therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during
any period in which a Prospectus relating to the Placement Shares is required to be delivered under the Securities Act (including
all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case
as soon as reasonably practicable and in such quantities as the Agent may from time to time reasonably request and, at the Agent’s
request, will also furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares may be made;
provided, however, that the Company shall not be required to furnish any document (other than the Prospectus) to
the Agent to the extent such document is available on EDGAR.


 


(f)               
Earning Statement. To the extent not otherwise available on EDGAR, 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 earning statement covering a 12-month period that satisfies the provisions of Section 11(a) and Rule 158 of
the Securities Act.


 


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


 


(h)              
Notice of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly,
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights
to purchase or acquire, Common Stock during the period beginning on the fifth (5th) Trading Day immediately prior to
the date on which any Placement Notice is delivered to the Agent hereunder and ending on the fifth (5th) Trading Day
immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if
the Placement Notice has been terminated or suspended prior to the sale of all Placement Shares covered by a Placement Notice,
the date of such suspension or termination); and will not directly or indirectly in any other “at the market” or continuous
equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other
than the Placement Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire, Common Stock prior to the later of the termination of this Agreement and the thirtieth
(30th) day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement
Notice; provided, however, that such restrictions will not be required in connection with the Company’s issuance
or sale of (i) Common Stock, options to purchase Common Stock, other equity awards to acquire Common Stock, or Common Stock
issuable upon the exercise of options or other equity awards, pursuant to (A) any employee or director stock option or benefits
plan, equity incentive or stock ownership plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed
plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented or (B) Nasdaq Listing
Rule 5635(c)(4), (ii) Common Stock issuable upon conversion of securities or the exercise of warrants, options or other rights
in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to the Agent and (iii)
Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration for mergers, acquisitions,
licensing, other business combinations or strategic alliances or corporate partnering transactions occurring after the date of
this Agreement which are not issued for capital raising purposes.


 






    	 	-23-	 



     


    

 


(i)                
Change of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agent
promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect
in any material respect any opinion, certificate, letter or other document required to be provided to the Agent pursuant to this
Agreement.


 


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


 


(k)              
Required Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities
Act shall require with respect to the Placement Shares, the Company will (i) file a prospectus supplement with the Commission
under the applicable paragraph of Rule 424(b) under the Securities Act (each and every filing date under Rule 424(b), a “Filing
Date”), which prospectus supplement will set forth, within the relevant period, the amount of Placement Shares sold
through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such
Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on
which such sales were effected as may be required by the rules or regulations of such exchange or market.


 


(l)                
Representation Dates; Certificate. (1) On or prior to the date of the first Placement Notice and (2) each time the
Company:


 


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


 






    	 	-24-	 



     


    

 


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


 


(iv) files
a current report on Form 8-K containing amended financial information (other than information “furnished” pursuant
to Items 2.02 or 7.01 of 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 Agent (but in the case of clause (iv) above only if the Agent reasonably determines that the information contained in such
Form 8-K is material) with a certificate dated the Representation Date, in the form and substance satisfactory to the Agent and
its counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented. The requirement to provide a certificate under this
Section 7(l) shall be automatically waived for any Representation Date occurring (1) at a time a Suspension is in effect,
which waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale of Placement
Shares hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date and (2) at a time at which no Placement Notice is pending, which waiver shall continue until the date the Company delivers
a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date). Notwithstanding the foregoing,
if the Company subsequently decides to sell Placement Shares following a Representation Date when a Suspension was in effect and
did not provide the Agent with a certificate under this Section 7(l), then before the Company delivers the instructions
for the sale of Placement Shares or the Agent sells any Placement Shares pursuant to such instructions, the Company shall provide
the Agent with a certificate in conformity with this Section 7(l) dated as of the date that the instructions for the sale
of Placement Shares are issued.


 


(m)            
Legal Opinion. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause to be furnished to the Agent a written opinion
of Pepper Hamilton LLP (“Company Counsel”), or other counsel reasonably satisfactory to the Agent, in
form and substance satisfactory to Agent and its counsel, substantially similar to the form previously provided to the Agent and
its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, the Company shall be required to furnish to Agent no more than one opinion hereunder per calendar
quarter; provided, further, that in lieu of such opinions for subsequent periodic filings under the Exchange Act,
counsel may furnish the Agent with a letter (a “Reliance Letter”) to the effect that the Agent may rely
on a prior opinion delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except
that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented as of the date of the Reliance Letter).


 






    	 	-25-	 



     


    

 



 


(n)              
Comfort Letter. (1) On or prior to the date of the first Placement Notice and (2) within five (5) Trading Days of
each Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l)
for which no waiver is applicable and excluding the date of this Agreement, the Company shall cause its independent registered
public accounting firm to furnish the Agent letters (the “Comfort Letters”), dated the date the Comfort
Letter is delivered, which shall meet the requirements set forth in this Section 7(n); provided, that if reasonably
requested by the Agent, the Company shall cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the
date of occurrence of any material transaction or event requiring the filing of a Current Report on Form 8-K containing financial
information, including the restatement of the Company’s financial statements. The Comfort Letter from the Company’s
independent registered public accounting firm shall be in a form and substance reasonably satisfactory to the Agent, (i) confirming
that they are an independent registered public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating,
as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the
first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any
information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary
to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.


 


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


 


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


 


(q)              
No Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in
its capacity as agent hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent
in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule
405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an
offer to buy Placement Shares hereunder.


 


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


 






    -26-


     


    

 


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


 


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


 






    -27-


     


    

 


8.             Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation and filing of the Registration Statement, including any fees required by the Commission,
and the printing or electronic delivery of the Prospectus as originally filed and of each amendment and supplement thereto, in
such number as the Agent shall reasonably deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such
other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares,
(iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Shares to the Agent, including
any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance
or delivery of the Placement Shares to the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors
to the Company, (v) the fees and expenses of the Agent including but not limited to the fees and expenses of the counsel to
the Agent, payable upon the execution of this Agreement, in an amount not to exceed $15,000, (vi) the qualification or exemption
of the Placement Shares under state securities laws in accordance with the provisions of Section 7(r) hereof, including
filing fees, but excluding fees of the Agent’s counsel, (vii) the printing and delivery to the Agent of copies of any
Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto in such number as the Agent
shall reasonably deem necessary, (viii) the preparation, printing and delivery to the Agent of copies of the blue sky survey
(subject to the cap set forth in clause (v) above), (ix) the fees and expenses of the transfer agent and registrar for the
Common Stock, (x) the filing and other fees incident to any review by FINRA of the terms of the sale of the Placement Shares
including the fees of the Agent’s counsel (subject to the cap, set forth in clause (v) above), and (xi) the fees and
expenses incurred in connection with the listing of the Placement Shares on the Exchange.


 


9.             Conditions to Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will
be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the
due performance by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory
to it in its reasonable judgment, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following
additional conditions:


 


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


 


(b)             
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the
Company of any request for additional information from the Commission or any other federal or state Governmental Authority during
the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or
supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state
Governmental Authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (iv) the occurrence of any event that makes any 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, the Prospectus or incorporated documents
so that, in the case of the Registration Statement, it will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case
of the Prospectus, it will not contain an untrue statement of a material fact or omit to state 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.


 






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


 


(d)             
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with
the Commission, there shall not have been any material adverse change in the authorized capital stock of the Company or any Material
Adverse Effect or any development that would reasonably be expected to cause a Material Adverse Effect, or a downgrading in or
withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by any rating organization
or a public announcement by any rating organization that it has under surveillance or review its rating of any of the Company’s
securities (other than asset backed securities), the effect of which, in the case of any such action by a rating organization described
above, in the reasonable judgment of the Agent (without relieving the Company of any obligation or liability it may otherwise have),
is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and
in the manner contemplated in the Prospectus.


 


(e)              
Legal Opinions. The Agent shall have received the opinions of Company Counsel required to be delivered pursuant to
Section 7(m) on or before the date on which such delivery of such opinions is required pursuant to Section 7(m).


 


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


 


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


 


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


 


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


 






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(j)               
Securities Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have
been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed
for such filing by Rule 424.


 


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


 


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


 


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


 


10.          
Indemnification and Contribution.


 


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


 


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


 


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


 


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


 






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


 


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


 


(c)              
Procedure. Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying
party or parties under this Section 10, notify each such indemnifying party of the commencement of such action, enclosing
a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from
(i) any liability that it might have to any indemnified party otherwise than under this Section 10 and (ii) any
liability that it may have to any indemnified party under the foregoing provision of this Section 10 unless, and only to
the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such
action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party
will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will
not be liable to the indemnified party for any other legal expenses except as provided below and except for the reasonable and
documented costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available
to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel
to assume the defense of such action or counsel reasonably satisfactory to the indemnified party, in each case, within a reasonable
time after receiving notice of the commencement of the action; in each of which cases the reasonable 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 (plus local counsel) 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 10 (whether or not any indemnified party is a party thereto),
unless such settlement, compromise or consent (1) includes an express and unconditional release of each indemnified party,
in form and substance reasonably satisfactory to such indemnified party, from all liability arising out of such litigation, investigation,
proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.


 






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


 


(e)              
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification
provided for in the foregoing paragraphs of this Section 10 is applicable in accordance with its terms but for any reason
is held to be unavailable or insufficient from the Company or the Agent, the Company and the Agent will contribute to the total
losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted) to which the Company
and the Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Agent on the other hand. The relative benefits received by the Company on the one hand and the Agent on
the other hand shall be deemed to be in the same proportion as the total net proceeds from the sale of the Placement Shares (before
deducting expenses) received by the Company bear to the total compensation received by the Agent from the sale of Placement Shares
on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable 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 Agent, on the other hand, with
respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action in respect thereof,
as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company or the Agent, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Agent agree
that it would not be just and equitable if contributions pursuant to this Section 10(e) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in
respect thereof, referred to above in this Section 10(e) shall be deemed to include, for the purpose of this Section
10(e), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending
any such action or claim to the extent consistent with Section 10(c) hereof. Notwithstanding the foregoing provisions of
this Section 10(e), the Agent shall not be required to contribute any amount in excess of the commissions received by it
under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 10(e), any person who controls a party to this Agreement within the meaning of the Securities Act,
any affiliates of the Agent and any officers, directors, partners, employees or agents of the Agent or any of its affiliates, will
have the same rights to contribution as that party, and each director of the Company and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof.
Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect
of which a claim for contribution may be made under this Section 10(e), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section 10(e) except to the extent that the failure to so
notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought.
Except for a settlement entered into pursuant to the last sentence of Section 10(c) hereof, no party will be liable for
contribution with respect to any action or claim settled without its written consent if such consent is required pursuant to Section
10(c) hereof.


 






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11.          
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section
10 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling
persons, or the Company (or any of their respective officers, directors, employees or controlling persons), (ii) delivery
and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.


 


12.          
Termination.


 


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


 






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(b)              
The Company shall have the right, by giving ten (10) days’ notice (or five (5) days’ notice at any time when
no Placement Notice is in effect) as hereinafter specified to terminate this Agreement in its sole discretion at any time after
the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions
of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof shall remain in full
force and effect notwithstanding such termination.


 


(c)              
The Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 8, Section 10, Section 11, Section 17 and
Section 18 hereof shall remain in full force and effect notwithstanding such termination.


 


(d)              
Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance
and sale of all of the Placement Shares through the Agent on the terms and subject to the conditions set forth herein; provided
that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof shall
remain in full force and effect notwithstanding such termination.


 






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(e)              
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(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 8, Section 10, Section 11, Section
17 and Section 18 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 Agent or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement
Shares, such Placement Shares shall settle in accordance with the provisions of this Agreement.


 


13.          
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:


 


Cantor Fitzgerald
 & Co.


499 Park Avenue


New York, NY
10022


	Attention:	 	Capital Markets
	Facsimile:	 	(212) 307-3730




 


and:


 


Cantor Fitzgerald
 & Co.


499 Park Avenue


New York, NY
10022


	Attention:	 	General Counsel
	Facsimile:	 	(212) 829-4708




 


with a copy to:


 


Goodwin Procter
LLP


620 Eighth
Avenue


New York,
NY 10018


	Attention:	 	Seo Salimi
	Facsimile:	 	(212) 656-1546




 


and if to
the Company, shall be delivered to:


 


Ocugen, Inc.


5 Great Valley
Parkway, Suite 160


Malvern, PA 19355


	Attention:	 	Sanjay S. Subramanian




 






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with a copy to:


 


Pepper Hamilton
LLP


3000 Two Logan
Square


Eighteenth and
Arch Streets


Philadelphia,
PA 19103


	Attention:	 	Jennifer Porter
	Facsimile:	 	(215) 981-4750




 


Each party to this
Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such
purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is
not a Business Day, on the next succeeding Business Day, (ii) 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 13 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the
party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice
may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.


 


14.          
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent
and their respective successors and the parties referred to in Section 10 hereof. References to any of the parties contained in
this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party; provided,
however, that the Agent may assign its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s
consent so long as such affiliate is a registered broker dealer and the Agent provides advance notice of such assignment to the
Company.


 


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


 


16.          
Entire Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached
hereto and Placement Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither
this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent.
In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect
to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall
be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that
giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of
the parties as reflected in this Agreement. No implied waiver by a party shall arise in the absence of a waiver in writing signed
by such party. No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power,
or privilege hereunder.


 






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


 


18.         
CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT
IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES
PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT
AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN
SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.


 


19.          
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other
may be made by facsimile or electronic transmission.


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


All references in this
Agreement to financial statements and schedules and other information that is “contained,” “included” or
 “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information that is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. For purposes of clarity, any financial information that is furnished
by the Company shall not be deemed incorporated by reference in the Registration Statement or the Prospectus.


 


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


 






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[Signature Page
Follows]


 


 


 






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


 


	
	 	Very truly yours,
	 	 
	 	OCUGEN, INC.
	 	 	 
	 	 	 
		By:	/s/ Shankar Musunuri
	 	 	Name: Shankar Musunuri
	 	 	Title: Chief Executive Officer and Chairman



 


 


	 	ACCEPTED as of
the date first-above written:
	 	 
	 	 
	 	CANTOR FITZGERALD & CO.
	 	 
	 	 
		By:	/s/ Sage Kelly
	 	 	Name: Sage Kelly
	 	 	Title: Senior Managing Director, Global Head of Investment Banking



 




    


     


    

 


SCHEDULE 1


 


 


__________________________


 


Form of Placement Notice


 


__________________________


 


 


		From:	Ocugen, Inc.



 


		To:	Cantor Fitzgerald & Co.

Attention: [__]



 


		Subject:	Placement Notice



 


		Date:	[__], 2020



 


Ladies and Gentlemen:


 


Pursuant to the terms
and subject to the conditions contained in the Controlled Equity OfferingSM Sales
Agreement between Ocugen, Inc., a Delaware corporation (the “Company”), and Cantor Fitzgerald & Co.
(“Agent”), dated June 12, 2020, the Company hereby requests that the Agent sell up to $[__] of
the Company’s common stock, par value $0.01 per share, at a minimum market price of $[__] per share, during the time period
beginning [month, day, time] and ending [month, day, time].


 


 


 




    


     


    

 


SCHEDULE 2


 


 


__________________________


 


Compensation


 


__________________________


 


 


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


 


 


 




    


     


    

 


Exhibit 21


 


Permitted Free Writing
Prospectus


 


None.