Exhibit 10.1


 


Ocugen, Inc.

Shares of Common Stock

(par value $0.01 per share)

At Market Issuance Sales Agreement


 


June 10, 2022


 


Cantor Fitzgerald & Co.

499 Park Avenue

New York, New York 10022


 


Mizuho Securities USA LLC


1271 Avenue of the Americas, 3rd Floor


New York, New York 10020


 


H.C. Wainwright & Co., LLC


430 Park Avenue


New York, New York 10022


 


Roth Capital Partners, LLC


888 San Clemente Drive, Suite 400


Newport Beach, California 92660


 


Chardan Capital Markets, LLC


17 State Street, 21st Floor


New York, New York 10004


 


Ladies and Gentlemen:


 


Ocugen, Inc.,
a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with Cantor Fitzgerald & Co., Mizuho Securities USA LLC,  H.C. Wainwright & Co., LLC, Roth Capital Partners,
LLC and Chardan Capital Markets, LLC (each, an “Agent” and together, the “Agents”),
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 Designated Agent, shares of common stock of the Company, par value $0.01
per share (the “Common Stock”) having an aggregate gross sales price of up to $160,000,000 (the “Placement
Shares”); provided, however, that in no event shall the Company issue or sell through the Agents 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 Agents shall have no obligation in connection
with such compliance. The offer and sale of Placement Shares through the Designated Agent will be effected pursuant to the Registration
Statement (as defined below) filed by the Company and which was declared effective by the Securities and Exchange Commission (the “Commission”)
automatically upon filing on March 22, 2021, 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. 333-254550), 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 each Agent, for use by such 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 Designated 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 Designated Agent to whom the Placement Notice is delivered, as 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 Designated 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 any Agent in connection
with such Agent’s sale of the Placement Shares, as the Designated Agent, shall be calculated in accordance with the terms set forth
in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor either 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 a Designated Agent and
the Designated 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 Designated Agent.


 


(a)            Subject
to the provisions of Section 5(a), each Designated Agent that receives a Placement Notice, 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. Each Designated 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 Designated 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 Designated 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 Designated 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.


 






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(b)            While
a Placement Notice is in effect, no Agent shall 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 Designated 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
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 Agents, 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.


 


5.            Sale
and Delivery to the Agents; 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 a Designated 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 Designated
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 Designated
Agent will be successful in selling Placement Shares, (ii) the Designated 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 Designated 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 Designated Agent shall be under no obligation to purchase Placement
Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and the Company.


 






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(b)            Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on
which such sales are made (each, a “Settlement Date”). The Designated 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 Designated Agent,
after deduction for (i) the Designated Agent’s commission, discount or other compensation for such sales payable by the Company
pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any Governmental Authority (as defined below)
in respect of such sales.


 


(c)            Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting the account of the Designated Agent, or such designee’s account (provided the Designated
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 Designated 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 Designated 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 Designated 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 Designated Agent
(without duplication) any commission, discount, or other compensation to which it would otherwise have been entitled absent such default.


 


(d)            Denominations;
Registration. Certificates for the Placement Shares, if any, shall be in such denominations and registered in such names as
the Designated 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 Designated 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 Agents 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.


 






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(f)            Sales
Through Agents. With respect to the offering and sale of Placement Shares pursuant to this Agreement, the Company agrees that any
offer to sell Placement Shares, any solicitation of an offer to buy Placement Shares, and any sales of Placement Shares shall only be
effected by or through the Designated Agent on any single given day, and the Company shall in no event request that more than one Agent
offer or sell Placement Shares pursuant to this Agreement on the same day.


 


6.            Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with each 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.


 


(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.


 






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(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.


 


(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.


 






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(l)             Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, or a duly authorized executive 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.


 


(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.


 






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(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.


 


(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.


 






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(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.


 


(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.


 






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(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, if applicable. 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) was at least $75 million on
(i) the later of the date of filing the Registration Statement or the most recent Annual Report on Form 10-K or (ii) a
date subsequent to the later of the date of filing of the Registration Statement or the most recent Annual Report on Form 10-K. 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.


 






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(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.


 






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(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.


 






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(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”).


 


(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.


 






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(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.


 


(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.


 






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(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.


 






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(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. At
the time (A) of the original effectiveness of the Registration Statement, (B) of the most recent amendment thereto for the purposes
of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment or incorporated
by reference to a report filed pursuant to Section 13 or 15(d) of the Exchange Act or in the form of a prospectus), (C) that
the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities
Act) made any offer relating to the Placement Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) as
of each Settlement Date, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405).


 


(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


 






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(B)            located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory
(including, without limitation, Cuba, Iran, North Korea, 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.


 






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(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.


 






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(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 each 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 a Designated 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 Agents 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 either Agent’s reasonable request, any amendments or supplements to the Registration
Statement or Prospectus that, in such Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution
of the Placement Shares by the Agents (provided, however, that the failure of the Agents to make such request shall not
relieve the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, that the only remedy the Agents 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 neither Agent has objected thereto in good faith on reasonable grounds and in
writing within two (2) Business Days (provided, however, that (A) the failure of either Agent to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect the Agents’ 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 Agents 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 Agents 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).


 






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(b)            Notice
of Commission Stop Orders. The Company will advise the Agents, 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 Agents 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 a Designated 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 Agents 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 Designated 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.


 






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(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 Agents and their 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 Agents may from time to time reasonably request and, at the Agents’ 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 Agents 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.”


 






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(h)            Notice
of Other Sales. Without the prior written consent of the Agents, 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 a Designated 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 sixtieth (60th) day immediately
following the termination of this Agreement; provided, however, that such restrictions will not be required in connection
with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock, other equity awards to acquire Common
Stock, or Common Stock issuable upon the exercise of options or 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 Agents, (iii) Common
Stock or securities convertible into or exchanges for Common Stock in privately negotiated transactions to vendors, customers, strategic
partners or potential strategic partners or other investors conducted in a manner so as not to be integrated with the offering of Common
Stock hereby, and (iv) 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.


 


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


 


(j)             Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agents or their 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 Agents 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 Agents, the Net
Proceeds to the Company and the compensation payable by the Company to the Agents 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.


 






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(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;


 


(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 Agents (but in the case of clause (iv) above only if the Agents reasonably determine that the information contained in such Form 8-K
is material) with a certificate dated as of the Representation Date, in the form and substance reasonably satisfactory to the Agents and
their counsel, substantially similar to the form previously provided to the Agents and their 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 at a time during which no Placement Notice is pending or a Suspension is
in effect, which waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale of Placement
Shares hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date.
Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when a Suspension
was in effect and did not provide the Agents with a certificate under this Section 7(l), then before the Company delivers
the instructions for the sale of Placement Shares or either Agent sells any Placement Shares pursuant to such instructions, the Company
shall provide the Agents 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) 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 to be furnished to the Agents a written opinion of Troutman
Pepper Hamilton Sanders LLP (“Company Counsel”), or other counsel reasonably satisfactory to the Agents, in
form and substance reasonably satisfactory to Agents and their counsel, substantially similar to the form previously provided to the Agents
and their counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, the Company shall be required to furnish to the Agents 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 Agents with a letter (a “Reliance Letter”) to the effect that the Agents may rely on a prior
opinion delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except that
statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented
as of the date of the Reliance Letter).


 






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(n)            Comfort
Letter. (1) 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 Agents 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 Agents, the Company
shall cause a Comfort Letter to be furnished to the Agents 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 Agents, (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 Agents.


 


(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 Agents in their capacity as
agents hereunder, neither of the Agents nor the Company (including its agents and representatives, other than the Agents in their 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.


 






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


 


(s)            Sarbanes-Oxley
Act. The Company and its 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 its 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 its 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 Agents
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 Agents such further information, certificates and documents
as the Agents may reasonably request.


 






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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 Agents shall reasonably deem
necessary, (ii) the printing and delivery to the Agents 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 Agents, 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 Agents, (iv) the
reasonable and documented fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the fees and
expenses of Agents including but not limited to the reasonable and documented fees and expenses of one set of counsel to the Agents, in
an amount not to exceed (A) $75,000 in connection with the execution of this Agreement and (B) $25,000 for each program “refresh”
executed pursuant to this Agreement, (vi) the qualification or exemption of the Placement Shares under state securities laws in accordance
with the provisions of Section 7(r) hereof, including filing fees, but excluding fees of the Agents’ counsel, (vii) the
printing and delivery to the Agents of copies of any Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or
supplements thereto in such number as the Agents shall reasonably deem necessary, (viii) the preparation, printing and delivery to
the Agents 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 reasonable and documented fees of the Agents’ 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 Agents’ Obligations. The obligations of the Agents 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 (other than those representations and warranties
made as of a specified date or time), to the due performance by the Company of its obligations hereunder, to the completion by the Agents
of a due diligence review satisfactory to it in their 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 Agents and (ii) sale of all Placement Shares contemplated to be issued
by any Placement Notice.


 






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(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.


 


(c)            No
Misstatement or Material Omission. Neither Agent shall have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in such Agent’s reasonable opinion is material, or
omits to state a fact that in such 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 Agents
(without relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable
to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.


 


(e)            Company
Counsel Legal Opinions. The Agents 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 Agents 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).


 






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(g)            Representation
Certificate. The Agents 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 Agents such appropriate further information, opinions, certificates, letters and other documents as the Agents
may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.


 


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


 


(k)            Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice of
issuance, or (ii) the Company shall have filed 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 Agents as described in the Prospectus.


 


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


 


10.           Indemnification
and Contribution.


 


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


 


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


 






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(ii)            against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company, which
consent shall not unreasonably be delayed or withheld; and (iii) against any and all expense whatsoever, as incurred (including the
reasonable and documented fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement or omission (whether or not a party), to the extent that any
such expense is not paid under (i) or (ii) above, provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement
or omission made solely in reliance upon and in conformity with the Agent Information (as defined below).


 


(b)            Agent
Indemnification. Each Agent, severally and not jointly, 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 Agents and furnished to the Company in writing by the Agents expressly for use therein. The Company hereby
acknowledges that the only information that the Agents have 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”).


 






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(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 after the indemnifying party receives a written invoice relating
to fees, disbursements and other changes in reasonable detail. 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.







 


(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.


 






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(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 Agents, the Company and the Agents 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 Agents 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 Agents on the other hand. The relative benefits received
by the Company on the one hand and the Agents 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
each 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 Agents,
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 Agents, 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 Agents 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 Agents 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 Agents and any officers,
directors, partners, employees or agents of the Agents 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. The Agents’ respective obligations to contribute pursuant to this Section 10(e) are
several in proportion to the respective number of Placement Shares they have sold hereunder, and not joint.


 






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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 Agents, 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
Agents 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 Material Adverse Effect
that, in the sole judgment of the Agents 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 Agents, 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 Agents shall provide the required notice as specified in Section 13
(Notices). For the avoidance of doubt, the termination by one Agent of its rights and obligations under this Agreement pursuant to this
Section 12(a) shall not affect the rights and obligations of the other Agent under this Agreement.


 


(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 its own obligations under 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.


 






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(c)            The
Agents 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. For the avoidance of doubt, the termination by one Agent
of its rights and obligations under this Agreement pursuant to this Section 13(c) shall not affect the rights and obligations
of the other Agent under this Agreement.


 


(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.


 


(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. Upon termination of this Agreement, the Company shall not have any liability
to an Agent for any discount, commission or other compensation with respect to any Placement Shares not otherwise sold by an Agent under
this Agreement.


 


(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 Agents 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, New York 10022

Attention: Capital Markets


 


Cantor Fitzgerald & Co.

499 Park Avenue

New York, New York 10022

Attention: General Counsel


 


Mizuho Securities USA LLC


1271 Avenue of the Americas, 3rd
Floor


New York, New York 10020


Attention: Stephen Roney, Kevin Mullane


Telephone: 212 205 7527


Email: Stephen.Roney@mizuhogroup.com;
Kevin.Mullane@mizuhogroup.com


With a copy to: legalnotices@mizuhogroup.com


 






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H.C. Wainwright & Co., LLC


430 Park Avenue


New York, New York 10022


Attention: Head of Investment Banking


e-mail: notices@hcwco.com


 


Roth Capital Partners, LLC


888 San Clemente Drive, Suite 400


Newport Beach, California 92660


Attention: atmdesk@roth.com


 


Chardan Capital Markets, LLC

17 State Street, 21st Floor

New York, New York 10004

Attention.: Shai Gerson

Email: sgerson@chardan.com


 


with a copy to:


 


Goodwin Procter LLP

620 Eighth Avenue

New York, NY 10018

Attention: Seo Salimi

E-mail: SSalimi@goodwinlaw.com


 


and if to the Company, shall be delivered to:


 


Ocugen, Inc.

11 Great Valley Parkway

Malvern, PA 19355

Attention: Shankar Musunuri, Ph.D., MBA

E-mail: Shankar.Musunuri@Ocugen.com


 


with a copy to:


 


Troutman Pepper Hamilton Sanders LLP

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA 19103


Attention:
Rachael Bushey


   Jennifer Porter


Facsimile: (215) 981-4750


 






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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 on or before 4:30 p.m., New York City time,
on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) by Electronic Notice as set forth
in the next paragraph, (iii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iv) on
the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks
in the City of New York are open for business.


 


An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to
the electronic mail address specified herein or 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 Agents 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 Agents may assign
its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s consent.


 


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 Agents. 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 electronic transmission.


 


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 Agents,
which shall not be unreasonably withheld, conditioned or delayed, and the Agents represent, warrant and agree that, unless it obtains
the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, they have 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 Agents 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.


 






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


 


(a)            the
Agents are 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 Agents, 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 Agents have advised or are advising the Company on other matters, and the Agents have 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 Agents nor their 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 Agents and their affiliates are engaged in a broad range of transactions which may involve interests that differ from
those of the Company and the Agents and their affiliates have no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship or otherwise; and


 


(e)            it
waives, to the fullest extent permitted by law, any claims it may have against the Agents or their 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 Agents
and their 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.


 



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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.


 


“Designated Agent”
shall mean, as of any given time, an Agent that the Company has designated as sales agent to sell Shares pursuant to the terms of this
Agreement.


 


“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 Agents outside of the United States.


 


[Signature Page Follows]


 






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


 


	 	Very truly yours,
	 	 	 
	 	OCUGEN, INC.
	 	 	 
	 	 	 
		By:	/s/ Shankar Musunuri, Ph.D. MBA
	 	 	Name:	 Shankar Musunuri, Ph.D., MBA
	 	 	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: Global Head of Investment Banking



 


	 	MIZUHO SECURITIES USA LLC
	 	 	 
	 	 	 
		By:	/s/ Stephen F. X. Roney
	 	 	Name: Stephen F. X. Roney
	 	 	Title: Managing Director




 





	 	H.C. WAINWRIGHT & CO., LLC
	 	 	 
	 	 	 
		By:	/s/ Edward D. Silvera
	 	 	Name: Edward D. Silvera
	 	 	Title: Chief Operating Officer


 






	 	ROTH CAPITAL PARTNERS, LLC
	 	 	 
	 	 	 
		By:	/s/ James Antonopoulos
	 	 	Name: James Antonopoulos
	 	 	Title: Managing Director


 






	 	CHARDAN CAPITAL MARKETS, LLC
	 	 	 
	 	 	 
		By:	/s/ Shai Gerson
	 	 	Name: Shai Gerson
	 	 	Title: Managing Partner


 



    


     


    

 


SCHEDULE 1


 





 








 


Form of Placement Notice


 





 



 


		From:	Ocugen, Inc.



 


 To:




 


[Cantor Fitzgerald & Co.

Attention: [•]]


 


[Mizuho Securities USA LLC

Attention: [•]]


 


H.C. Wainwright & Co., LLC


Attention: [•]]


 


[Roth Capital Partners, LLC 


Attention: [•]]


 


[Chardan Capital Markets, LLC

Attention: [•]]


 


		Subject:	Placement Notice



 


		Date:	[•], 202[•]



 


Ladies and Gentlemen:


 


Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Ocugen, Inc., a Delaware corporation (the “Company”),
and Cantor Fitzgerald & Co., Mizuho Securities USA LLC, H.C. Wainwright & Co., LLC, Roth Capital Partners, LLC and Chardan
Capital Markets, LLC, dated June 10, 2022, the Company hereby requests that the Designated 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]. [The Agent acknowledges and agrees that the number of shares of Common Stock to be sold on any Trading
Day shall not exceed [•] shares.]


 






    


     


    

 


SCHEDULE 2


 





 



 


Compensation


 





 



 


The Company shall pay to the
Designated 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.