Exhibit 10.1


 





Cytokinetics, Incorporated


Shares of Common Stock


(par value $0.001 per share)


 


Controlled Equity OfferingSM


 


Sales Agreement


 


November 3, 2017


 


Cantor Fitzgerald & Co.


499 Park Avenue


New York, NY 10022


 


Ladies and Gentlemen:


 


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


 


1.                 
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the
terms and subject to the conditions set forth herein, it may issue and sell through the Agent shares of common stock (the “Placement
Shares”) of the Company, par value $0.001 per share (the “Common Stock”); provided, however,
that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would
(a) exceed the number or dollar amount of shares of Common Stock registered on the effective Registration Statement (defined below)
pursuant to which the offering is being made, (b) exceed the number of authorized but unissued shares of Common Stock, (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
(defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything
to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on
the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the
Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will
be effected pursuant to the Registration Statement to be filed by the Company and which will become automatically effective under
Rule 462(e) of the Securities Act (as defined below) upon filing with the Securities and Exchange Commission (the “Commission”),
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 or will file, 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, 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 included as part of such registration statement, which prospectus
relates to the Placement Shares to be issued from time to time by the Company (the “Placement Share Prospectus”).
The Company will furnish to the Agent, for use by the Agent, copies of the Placement Share Prospectus, as supplemented, if at all,
by any prospectus supplement relating to the Placement Shares. 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), 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 or 462(b) of the Securities Act Regulations, is
herein called the “Registration Statement.” The Placement Share Prospectus, any base prospectus or base
prospectuses relating to the Placement Shares, including all documents incorporated therein by reference, included in the Registration
Statement, as it may be supplemented, if necessary, by a 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), is herein called the “Prospectus.”


 






     

     


    

Any reference herein to the Registration Statement,
the 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, the Placement Share Prospectus,
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 Placement Share Prospectus,
Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed
to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system,
or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).


 


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


 






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3.                 
Sale of Placement Shares by Agent. Subject to the terms and provisions of this Agreement, the Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable state and federal laws, rules and regulations and the rules of the NASDAQ Stock Market (the “Exchange”),
to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The
Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares
sold on such day, the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the
Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in
Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Agent
may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4)
of the Securities Act Regulations, including without limitation sales made directly on or through 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.


 


4.                 
Suspension of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email
correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually
acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately
by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule
3), suspend any sale of Placement Shares (a “Suspension”); provided, however, that such Suspension shall
not affect or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of
such notice. While a Suspension is in effect any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of
certificates, opinions, or comfort letters to the Agent, shall be waived, provided, however, that such waiver shall not apply for
the Representation Date (defined below) occurring on the date that the Company files its annual report on Form 10-K. 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 and acknowledged
by one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.


 






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5.                 
Sale and Delivery to the Agent; Settlement.


 


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


 


(b)              
Settlement of Placement Shares.  Unless otherwise specified in the applicable Placement Notice, settlement
for sales of Placement Shares will occur on the third (3rd) Trading Day (or such earlier day as is industry practice
for regular-way trading) following the date on which such sales are made (each, a “Settlement Date”).
The Agent shall notify the Company of each sale of Placement Shares no later than the opening of the Trading Day immediately following
the Trading Day on which it has made sales of Placement Shares hereunder. The amount of proceeds to be delivered to the Company
on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal
to the aggregate sales price received by the Agent, after deduction for (i) the Agent’s commission, discount or other compensation
for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.


 


(c)               
 Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided
the Agent shall have given the Company written notice of such designee at least one (1) Trading Day prior to the Settlement Date)
at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may
be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good
deliverable form. On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated
by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver Placement Shares on a Settlement Date through no fault of the Agent, the Company agrees that
in addition to and in no way limiting the rights and obligations set forth in Section 10(a) hereto, it will (i) hold the Agent
harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of
or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to the Agent any commission,
discount, or other compensation to which it would otherwise have been entitled absent such default.


 






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(d)              
Denominations; Registration. Certificates for the Placement Shares, if any, shall be in such denominations
and registered in such names as the Agent may request in writing at least one (1) full Business Day before the Settlement Date.
The certificates for the Placement Shares, if any, will be made available by the Company for examination and packaging by the Agent
in The City of New York not later than noon (New York time) on the Business Day prior to the Settlement Date.


 


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


 


6.                 
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with Agent that
as of the date of this Agreement and as of each Applicable Time (as defined below), unless such representation, warranty or agreement
speaks as of a different time:


 


(a)               
Registration Statement and Prospectus. The Company and, assuming no act or omission on the part of the Agent that
would make such statement untrue, the transactions contemplated by this Agreement meet the requirements for and comply with the
applicable conditions for the use of Form S-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration
Statement has been filed or will be filed with the Commission and has been or will be declared effective by the Commission under
the Securities Act prior to the issuance of any Placement Notices by the Company. The Prospectus 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 pursuant to this Agreement 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 or will be so described or filed. Copies of the Registration Statement, the Prospectus,
and any amendments or supplements thereto and all Incorporated Documents 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, any such consent not
to be unreasonably withheld conditioned or delayed. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act
and is currently listed on the Exchange under the trading symbol “CYTK.” 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 or delisting the Common
Stock from the Exchange, nor has the Company received any notification that the Commission or the Exchange is contemplating terminating
such registration or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements of
the Exchange. The Company has no reason to believe that it will not in the foreseeable future continue to be in compliance with
all such listing and maintenance requirements.


 






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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. 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 Incorporated Documents did not, and any further Incorporated Documents filed after the date of this Agreement will
not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to
be stated in such document or necessary to make the statements in such document, in light of the circumstances under which they
were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Agent 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 Incorporated Documents, 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.
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.


 


(d)              
Financial Information. The 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, comply
in all material respects with the requirements of the Securities Act and the Exchange Act and present fairly, in all material respects,
the financial position of the Company at the dates indicated and the statements of operations, statements of stockholders’
equity and statements of cash flows of the Company for the periods specified (subject to normal year end audit adjustments for
interim financial statements) and have been prepared in conformity with GAAP (as defined below) applied on a consistent basis during
the periods involved; the summary and selected financial 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, fairly present in all material respects the information shown therein as at the respective dates and for the respective
periods specified and are accurately and fairly presented and prepared on a basis consistent with the financial statements set
forth in the Registration Statement and the Prospectus and other accounting books and records of the Company. No other schedules
or financial statements (historical or pro forma) 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) has been duly organized and is validly
existing as a corporation and in good standing under the laws of the State of Delaware, with corporate power and authority to own
its properties and conduct its business as currently being conducted and as described in the Registration Statement and the Prospectus,
and is duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the
failure to be so qualified in any such jurisdiction would not reasonably be expected to, individually or in the aggregate, have
a material adverse effect on the assets, business, operations, earnings, properties, condition (financial or otherwise), prospects,
stockholders’ equity or results of operations of the Company and the Subsidiaries (as defined below) taken as a whole, or
prevent or materially interfere with the consummation of the transactions contemplated hereby (a “Material Adverse
Effect”).


 


(g)              
Subsidiaries. The Company has no subsidiaries other than those set forth on Schedule 4 (collectively, the
“Subsidiaries”). The Company does not own, directly or indirectly, any shares of stock or any other equity
or long-term debt securities of any other corporation or have any equity interest in any other corporation, partnership, joint
venture, association, trust or other entity.


 


(h)              
No Violation or Default. Neither the Company nor any of its Subsidiaries are in breach or violation of nor in default
under (nor has any event occurred which, with notice, lapse of time or both, would result in any breach or violation of, constitute
a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a part of such indebtedness under) (i)  its charter or by-laws or similar
organizational documents; (ii)  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 any of the Company’s properties or assets may be bound
or affected; or (iii) any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental
or regulatory 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 Incorporated Document), 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) other than as contemplated by this Agreement, 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 (other than as a result of the sale of Placement Shares) or outstanding long-term indebtedness of the Company
or any of its Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company
or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in the Registration
Statement or Prospectus (including any document deemed incorporated by reference therein).


 


(j)                
Capitalization. The issued and outstanding shares of capital stock of the Company have been validly issued, are fully
paid and nonassessable and, other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive
rights, rights of first refusal or similar rights pursuant to the Company’s charter, bylaws or any agreement or other instrument
to which the Company is a party or by which the Company is bound. 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 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, there
are no options, warrants, agreements, commitments, contracts or other rights in existence to purchase or acquire from the Company
whether through a conversion, exchange or otherwise any shares of the capital stock of the Company or other securities (other than
as a result of the grant of stock options under the Company’s existing equity incentive plans after the date(s) set forth
in the Registration Statement and the Prospectus.


 


(k)              
Authorization; Enforceability. The Company has full legal right, power and authority to enter into this Agreement
and to perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company
and constitutes a legal, valid and binding agreement of the Company, enforceable in accordance with its terms, except as rights
to indemnification or contribution hereunder may be limited by federal or state securities laws and except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general equitable principles.


 






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(l)                
Authorization of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved
by the board of directors of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against
payment therefor as provided herein, will be duly authorized, validly issued, fully paid and nonassessable and free and clear of
any pledge, lien, encumbrance, security interest or other claim (other than any pledge, lien, encumbrance, security interest or
other claim arising from an act or omission of the Agent or a purchaser), 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 of the Placement Shares contained in
the Registration Statement and the Prospectus under the caption “Description of Capital Stock”.


 


(m)            
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court
or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of
this Agreement or the issuance and sale by the Company of the Placement Shares, except for (i) the registration of the Placement
Shares under the Securities Act; and (ii) 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, (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. PricewaterhouseCoopers LLP (the “Accountant”), whose
report on the 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 the termination of which is disclosed in documents filed by the
Company on EDGAR, are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms,
except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions
of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof, except
for any unenforceability that, individually or in the aggregate, would not have a Material Adverse Effect.


 


(q)              
No Litigation. Except as set forth in the Registration Statement or the Prospectus, there are no legal, governmental
or regulatory actions, suits or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory
audits or investigations, to which the Company or a Subsidiary is a party or to which any property of the Company or any of its
Subsidiaries is the subject that, individually or in the aggregate, if determined adversely to the Company or any of its Subsidiaries,
would have a Material Adverse Effect or materially and adversely affect the ability of the Company to perform its obligations under
this Agreement; to the Company’s knowledge, no such actions, suits or proceedings are threatened or contemplated by any legal,
governmental or regulatory authority or threatened by others that, individually or in the aggregate, would have a Material Adverse
Effect or materially and adversely affect the ability of the Company to perform its obligations under this Agreement; and (i) there
are no current or pending legal, governmental or regulatory audits or investigations, actions, suits or proceedings 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 or regulatory authorities (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 have a Material Adverse Effect; the Company and its Subsidiaries
are in compliance with the terms and conditions of all such Permits, except where the failure to be in compliance would not have
a Material Adverse Effect; all of the Permits are valid and in full force and effect, except where any invalidity, individually
or in the aggregate, would not be reasonably expected to have a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries has received any written notice of proceedings relating to the limitation, revocation, cancellation, suspension, modification
or non-renewal of any such Permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would be reasonably 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. 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.


 






    	 	-10-	 



     


    

(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 regulatory authorities (including, without limitation, the FDA,
or any foreign, federal, state, provincial or local governmental or regulatory authority performing functions similar to those
performed by the FDA) any required filing, declaration, listing, registration, report or submission, except for such failures that,
individually or in the aggregate, would not have a Material Adverse Effect; except as disclosed in the Registration Statement and
the Prospectus, all such filings, declarations, listings, registrations, reports or submissions were in compliance with applicable
laws when filed and no deficiencies have been asserted by any applicable regulatory authority with respect to any such filings,
declarations, listings, registrations, reports or submissions, except for any deficiencies that, individually or in the aggregate,
would not have a Material Adverse Effect. The Company has operated and currently is, in all material respects, in compliance with
the United States Federal Food, Drug, and Cosmetic Act, all applicable rules and regulations of the FDA and other federal, state,
local and foreign governmental bodies exercising comparable authority. The Company has no knowledge of any studies, tests or trials
not described in the Prospectus the results of which reasonably call into question in any material respect the results of the studies,
tests and trials described in the Prospectus.


 


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


 






    	 	-11-	 



     


    

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


 


(v)              
Market Capitalization. At the time the Registration Statement was or will be 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 or will
meet the then applicable requirements for the use of Form S-3 under the Securities Act, including, but not limited to, General
Instruction I.B.1 of Form S-3. The aggregate market value of the outstanding voting and non-voting common equity (pursuant
to Securities Act Rule 144) of the Company held by persons other than affiliates of the Company (as defined in Securities Act Rule
405, those that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common
control with, the Company)  (the “Non-Affiliate Shares”), was equal to or greater than $75 million
(calculated by multiplying (x) the highest price at which the common equity of the Company was last sold on the Exchange within
60 days of the date of the filing of the Registration Statement times (y) the number of Non-Affiliate Shares). The Company is not
a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months
previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction
I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a
shell company.


 






    	 	-12-	 



     


    

(w)            
No Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness
for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably
be expected to 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 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 or any related entities (i) is
required to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or
(ii) directly or indirectly through one or more intermediaries, controls or is a “person associated with a member”
or “associated person of a member” (within the meaning 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 income and franchise
tax returns and other material tax returns which have been required to be filed by the Company or a Subsidiary, or have properly
requested extensions thereof, 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 against it which would not reasonably be
expected to have a Material Adverse Effect.


 


(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 to all real property owned by them, good and valid title to all tangible personal
property described in the Registration Statement or the Prospectus as being owned by them that are material to the businesses of
the Company or such Subsidiary, in each case free and clear of all liens, encumbrances and claims, except those 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 reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Any real or tangible 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 be reasonably
expected to have a Material Adverse Effect. None of the Company or its subsidiaries has received from any governmental or regulatory
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.


 






    	 	-13-	 



     


    

(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.


 


(dd)         
Disclosure Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls 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 (“GAAP”) and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. The Company’s internal control over financial reporting is effective 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, including 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 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 were 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.


 






    	 	-14-	 



     


    

(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 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 agency having jurisdiction over the Company (collectively, the “Money Laundering Laws”),
except as would not result in a Material Adverse Effect; and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator 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.


 






    	 	-15-	 



     


    

(jj)              
Off-Balance Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among
the Company, and/or, to the knowledge of the Company, 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 would 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. 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, (i) 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”) (except
to the extent where any non-compliance would not result in material liability to the company); (ii) during the last six plan years,
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 (iii) 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 the Agent has informed the Company that the Agent may,
to the extent permitted under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while
this Agreement is in effect, provided, that (i) no such purchase or sales shall take place while a Placement Notice is in
effect (except to the extent each 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.


 






    	 	-16-	 



     


    

(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 engaged in similar businesses in similar industries.


 


(qq)          
No Improper Practices. (i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries, nor
to the Company’s knowledge, any of their respective executive officers 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 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 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, to the Company’s knowledge, any Subsidiary
or any affiliate of any of them, on the one hand, and the directors, officers and stockholders of the Company or, to the Company’s
knowledge, 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, to
the Company’s knowledge, 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 Prospectus, there are
no material outstanding loans or advances or material guarantees of indebtedness by the Company or, to the Company’s knowledge,
any Subsidiary to or for the benefit of any of their respective officers or directors or any of the members of the families of
any of them; (v) the Company has not offered, or caused any placement agent to offer, Common Stock to any person with the intent
to influence unlawfully (A) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s
level or type of business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish
favorable information about the Company or any Subsidiary or any of their respective products or services, and (vi) neither the
Company nor any Subsidiary nor, to the Company’s knowledge, any employee or agent of the Company or any Subsidiary has made
any payment of funds of the Company or any Subsidiary or received or retained any funds in violation of any law, rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of
a character required to be disclosed in the Registration Statement or the Prospectus.


 


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


 


(ss)            
No Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its
issue date and as of each Applicable Time (as defined in Section 24 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 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.


 






    	 	-17-	 



     


    

(tt)             
No Conflicts. Neither the execution of this Agreement by the Company, nor the issuance, offering or sale of the Placement
Shares, nor the consummation by the Company 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 court or of any federal, state or other regulatory authority or other government body having jurisdiction over the Company,
other than, with respect to clause (y) only, any violation that would not reasonably be expected to have a Material Adverse Effect.


 


(uu)          
 Sanctions. (i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively,
the “Entity”) or, to the Entity’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 applicable
sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations
Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”),
nor


 


(B)  located, organized or
resident in a country or territory that is the subject of Sanctions administered by the U.S. Department of Treasury’s Office
of Foreign Assets Control or other relevant sanctions authority (including, without limitation, Burma/Myanmar, Cuba, Iran, North
Korea, Sudan and Syria).


 


(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


 






    	 	-18-	 



     


    

(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 five (5) years, it has not
knowingly engaged in, is not now knowingly engaged 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.


 


(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.


 


(ww)      
Compliance with Laws. Each of the Company and its Subsidiaries: (A) is and at all times has been in compliance in
all material respects 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 on the date filed (or were corrected
or supplemented by a subsequent submission), except as could not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; 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. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries, nor,
to the knowledge of the Company, any of their respective employees, officers, directors and agents, nor any of their respective
business operations, is in violation of any applicable Health Care Laws, except where the failure to be in compliance would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. For purposes of this Agreement,
“Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act and the regulations promulgated
thereunder, including the U.S. Prescription Drug Marketing Act of 1987, as amended, and the regulations promulgated thereunder;
(ii) all federal, state, local and all foreign health care related fraud and abuse laws, including, without limitation, the U.S.
Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), Sections
1320a-7 and 1320a-7a of Title 42 of the United States Code and the regulations promulgated pursuant to such statutes; (iii) any
criminal laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health
care fraud criminal provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”);
(iv) the Standards for Privacy of Individually Identifiable Health Information, the Security Standards, the Standards for Electronic
Transactions and Code Sets promulgated under HIPAA (42 U.S.C. Section 1320d et seq.), the Health Information Technology for Economic
and Clinical Health Act (42 U.S.C. Section 17921 et seq.), and the regulations promulgated thereunder and any state or non-U.S.
counterpart thereof or other law or regulation the purpose of which is to protect the privacy of individuals or prescribers; (iv)
the U.S. Controlled Substances Act; (v) any laws or regulations that govern participation in or coverage or reimbursement from
any U.S. or state health care program, including but not limited to the federal TRICARE statute (10 U.S.C. §1071 et seq.),
the Veterans Administration drug pricing program (38 U.S.C. Section 8126), and any regulations promulgated thereunder; (vi) quality,
safety and accreditation standards and requirements of any applicable federal, state, local or foreign laws or regulatory bodies;
and (vii) any and all other applicable health care laws and regulations in any jurisdiction, as well as contractual agreements
mandated by such laws. Additionally, neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any
of their respective employees, officers, directors, agents or contractors has been excluded, suspended or debarred from participation
in any federal health care program or, to the knowledge of Company and its Subsidiaries, is subject to an inquiry, investigation,
proceeding, or other similar matter that could subject the Company, any of its Subsidiaries, or any of their respective employees,
officers, directors, agents or contractors to exclusion, suspension or debarment.


 






    	 	-19-	 



     


    

(xx)          
Well-Known Seasoned Issuer.  At the time the Registration Statement was or will be originally declared effective,
the Company was or will be a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act).


 


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


 


7.                 
Covenants of the Company. The Company covenants and agrees with Agent that:


 


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


 






    	 	-20-	 



     


    

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


 






    	 	-21-	 



     


    

(c)               
Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares
is required to be delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including
in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply
in all material respects with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file
on or before their respective due dates all reports and any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act.
If the Company has omitted any information from the Registration Statement pursuant to Rule 430B under the Securities Act, it will
use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule
430B and to notify the Agent promptly of all such filings. If 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 Agent to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement the
Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such
compliance; provided, however, that the Company may delay any such amendment or supplement if, in the reasonable judgment of the
Company, it is in the best interests of the Company to do so.


 


(d)              
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required
to be delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, the Company will
use its reasonable best efforts to cause the Placement Shares to be listed on the Exchange.


 


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


 


(f)               
Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but
in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering
a 12-month period that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.


 


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


 






    	 	-22-	 



     


    

(h)              
Notice of Other Sales. Without the prior written consent of Agent, the Company will not, directly or indirectly,
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights
to purchase or acquire, Common Stock during the period beginning on the fifth (5th) Trading Day immediately prior to the date on
which any Placement Notice is delivered to Agent hereunder and ending on the fifth (5th) Trading Day immediately following the
final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has
been terminated or suspended prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension
or termination); and will not directly or indirectly in any other “at-the-market” or continuous equity transaction
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights
to purchase or acquire, Common Stock prior to the later of the termination of this Agreement and the sixtieth (60th) day immediately
following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice; provided, however,
that such restrictions will not apply in connection with the Company’s issuance or sale of (i) Common Stock, options
to purchase Common Stock or restricted stock units or stock awards or Common Stock issuable upon the exercise or vesting of options
or other equity awards, pursuant to any employee, consultant or director stock option or benefits plan, 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, (ii) Common Stock issuable upon conversion of securities or the
exercise or vesting of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available
on EDGAR or otherwise in writing to the Agent and (iii) Common Stock or securities convertible into or exchangeable for shares
of Common Stock as consideration for mergers, acquisitions, other business combinations or strategic alliances, or offered and
sold in privately negotiated transactions with vendors, customers, investors, strategic partners or potential strategic partners,
occurring after the date of this Agreement which are not issued for capital raising purposes and conducted in a manner so as not
to be integrated with the offering of Placement Shares hereby.


 


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


 


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


 


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


 






    	 	-23-	 



     


    

(l)                
Representation Dates; Certificates. (1) On or prior to the date of the first Placement Notice and (2) following delivery
of the first Placement Notice each time during the term of this Agreement that 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 restated financial statements or a material amendment to the
previously filed Form 10-K);


 


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


 


(iv) files a current report on Form
8-K containing amended financial information (other than information “furnished” pursuant to Items 2.02 or 7.01 of
Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties
as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act (each
date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation Date”);


 


the Company shall furnish the Agent (but in the
case of clause (iv) above only if the Agent reasonably determines that the information contained in such Form 8-K is material)
with the certificates, in the forms attached hereto as Exhibit 7(l)(1) and 7(l)(2). The requirement to provide the certificates
under this Section 7(l) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending,
which waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale of Placement
Shares hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date
when the Company relied on such waiver and did not provide the Agent with the certificates under this Section 7(l), then before
the Company delivers the instructions for the sale of Placement Shares or the Agent sells any Placement Shares pursuant to such
instructions, the Company shall provide the Agent with the certificates in conformity with this Section 7(l) dated as of the date
that the instructions for the sale of Placement Shares are issued.


 






    	 	-24-	 



     


    

(m)            
Legal Opinions. (1) On or prior to the date of the first Placement Notice and (2) unless waived by the Agent,
the Company shall, within five (5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver
certificates in the form attached hereto as Exhibit 7(l)(1) and 7(l)(2) for which no waiver is applicable and excluding the date
of this Agreement, cause to be furnished to the Agent (A) a written opinion and negative assurance letter of Cooley LLP, or
other counsel satisfactory to the Agent (“Company Counsel”), and (B) a written opinion of Morrison
& Foerster LLP, or other counsel satisfactory to the Agent (“IP Counsel”), in each case in form and
substance satisfactory to Agent and its counsel, respectively, modified, as necessary, to relate to the Registration Statement
and the Prospectus as then amended or supplemented; provided, however, the Company shall be required to furnish to Agent no more
than one opinion and negative assurance letter from Company Counsel and no more than one opinion from the IP Counsel hereunder
per calendar quarter and the Company shall not be required to furnish any such opinions or negative assurance letter if the Company
does not intend to deliver a Placement Notice in such calendar quarter until such time as the Company delivers its next Placement
Notice; provided, further, that in lieu of such opinions for subsequent periodic filings under the Exchange Act, counsel may furnish
the Agent with a letter (a “Reliance Letter”) to the effect that the Agent may rely on a prior opinion
delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except that statements in
such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of
the date of the Reliance Letter).


 


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


 


(o)              
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result
in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation
of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agent. Nothing
to the contrary in this Agreement shall prohibit the Company, at any time at which a Placement Notice is not in effect, from engaging
in sales of its Common Stock through public offerings, private placements or otherwise, including through underwriters or placement
agents.


 






    	 	-25-	 



     


    

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


 


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


 


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


 


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


 






    	 	-26-	 



     


    

(t)                
Secretary’s Certificate; Further Documentation. On or prior to the date of the first Placement Notice, the
Company shall deliver to the Agent a certificate of the Secretary of the Company and attested to by an executive officer of the
Company, dated as of such date, certifying as to (i) the Certificate of Incorporation of the Company, (ii) the By-laws of the Company,
(iii) the resolutions of the Board of Directors of the Company, or a duly authorized committee of the Board of Directors, authorizing
the execution, delivery and performance of this Agreement and the issuance of the Placement Shares and (iv) the incumbency of the
officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement. Within five (5) Trading
Days of each Representation Date, the Company shall have furnished to the Agent such further information, certificates and documents
as the Agent may reasonably request.


 


8.                 
Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation and filing of the Registration Statement, including any fees required by the Commission,
and the printing or electronic delivery of the Prospectus as originally filed and of each amendment and supplement thereto, in
such number as the Agent shall reasonably deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such
other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares,
(iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Shares to the Agent, including
any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance
or delivery of the Placement Shares to the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors
to the Company, (v) the out-of-pocket expenses of the Agent (including, without limitation, the fees and disbursements of
the counsel to the Agent), payable upon the execution of this Agreement, in an amount not to exceed $50,000; (vi) the qualification
or exemption of the Placement Shares under state securities laws in accordance with the provisions of Section 7(r) hereof,
including filing fees, but excluding fees of the Agent’s counsel, (vii) the printing and delivery to the Agent of copies
of any Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto in such number as
the Agent shall reasonably deem necessary, (viii) the preparation, printing and delivery to the Agent of copies of the blue
sky survey, (ix) the fees and expenses of the transfer agent and registrar for the Common Stock, (x) the filing and other
fees incident to any review by FINRA of the terms of the sale of the Placement Shares including the fees of the Agent’s counsel
(subject to the cap, set forth in clause (v) above), and (xi) the fees and expenses incurred in connection with the listing
of the Placement Shares on the Exchange.


 


9.                 
Representations and Covenants of Agent. Agent represents and warrants that it is duly registered as a broker-dealer
under FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered
and sold, except such states in which Agent is exempt from registration or such registration is not otherwise required. Agent shall
continue, for the term of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable
statutes and regulations of each state in which the Placement Shares will be offered and sold, except such states in which Agent
is exempt from registration or such registration is not otherwise required, during the term of this Agreement. Agent will comply
with all applicable law and regulations in connection with the Placement Shares, including but not limited to Regulation M.


 






    	 	-27-	 



     


    

10.             
Conditions to Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will
be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the
due performance by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory
to it in its reasonable judgment, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following
additional conditions:


 


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


 


(b)              
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the
Company of any request for additional information from the Commission or any other federal or state Governmental Authority during
the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or
supplements to the Registration Statement or the Prospectus if such post effective amendments or supplements have not been made
and become effective; (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 material incorporated documents so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading and so that, in the case of the Prospectus, it will
not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.


 


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


 






    	 	-28-	 



     


    

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


 


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


 


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


 


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


 


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


 


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


 


(j)                
Securities Act Filings Made. All filings with the Commission with respect to the Placement Shares 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 approved for listing on the Exchange, subject only
to notice of issuance, or 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.


 






    	 	-29-	 



     


    

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


 


(m)            
No Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement
pursuant to Section 13(a).


 


11.             
Indemnification and Contribution.


 


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


 


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


 


(ii)              
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent
of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or
body, 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 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 fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, 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 written information furnished
to the Company by the Agent for use in the Registration Statement (or any amendment thereto), or in any related Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto).


 






    	 	-30-	 



     


    

(b)              
Agent Indemnification. Agent agrees to indemnify and hold harmless the Company and its directors and each officer
and director 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 11(a), as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or
any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with information
furnished to the Company in writing by the Agent expressly for use therein. The Company hereby acknowledges that the only information
that the Agent has furnished to the Company expressly for use in the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus (or any amendment or supplement thereto) are the statements set forth in the seventh and eighth paragraphs under
the caption “Plan of Distribution” in the Prospectus.


 


(c)               
Procedure. Any party that proposes to assert the right to be indemnified under this Section 11 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 11, 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 11 and (ii) any liability that it
may have to any indemnified party under the foregoing provision of this Section 11 unless, and only to the extent that, such omission
results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate
in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified
party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party after the indemnifying party receives a written invoice relating to the fees, disbursements and other charges 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 if such consent is required by this Section 11(c). 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 11 (whether or not any indemnified party is a party thereto),
unless such settlement, compromise or consent (1) includes an unconditional release of each 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.


 






    	 	-31-	 



     


    

(d)              
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification
provided for in the foregoing paragraphs of this Section 11 is applicable in accordance with its terms but for any reason is held
to be unavailable or insufficient from the Company or the Agent, the Company and the Agent will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than the Agent, such as persons who control the Company within the meaning of the Securities
Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution)
to which the Company and the Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Agent on the other hand. The relative benefits received by the Company on the one hand and
the Agent on the other hand shall be deemed to be in the same proportion as the total Net Proceeds from the sale of the Placement
Shares (before deducting expenses) received by the Company bear to the total compensation received by the Agent (before deducting
expenses) from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on
the one hand, and the Agent, on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the
Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Agent agree that it would not be just and equitable if contributions pursuant to this
Section 11(d) were to be determined by pro rata allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense, or damage, or action in respect thereof, referred to above in this Section 11(d) shall be deemed to include,
for the purpose of this Section 11(d), any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim to the extent consistent with Section 11(c) hereof. Notwithstanding the
foregoing provisions of this Section 11(d), the Agent shall not be required to contribute any amount in excess of the commissions
received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 11(d), any person who controls a party to this Agreement within the meaning of the Securities Act,
and any officers, directors, partners, employees or agents of the Agent, will have the same rights to contribution as that party,
and each officer and director 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 11(d),
will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that
party or parties from whom contribution may be sought from any other obligation it or they may have under this Section 11(d) except
to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party
from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 11(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 11(c) hereof.


 






    	 	-32-	 



     


    

12.             
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section
11 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling
persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance
of the Placement Shares and payment therefor or (iii) any termination of this Agreement.


 


13.             
Termination.


 


(a)               
The Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there
has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any
change, or any development or event involving a prospective change, in the condition, financial or otherwise, or in the business,
properties, earnings, results of operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, which individually or in the aggregate, in the sole judgment of the Agent is
material and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale
of the Placement Shares, (2) if there has occurred any material adverse change in the financial markets in the United States
or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the Agent, impracticable or inadvisable to market the Placement
Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the Common Stock has been suspended
or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum
prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities settlements or
clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium has been declared
by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations
and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (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 13(a), the Agent shall provide the required notice as specified in Section 14 (Notices).


 






    	 	-33-	 



     


    

(b)              
The Company shall have the right, by giving five (5) 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 11, Section 12, Section 18, Section 19 and Section 20
hereof shall remain in full force and effect notwithstanding such termination.


 


(c)               
The Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 8, Section 11, Section 12, Section 18 and Section 19 hereof shall remain
in full force and effect notwithstanding such termination.


 


(d)              
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), or (c) above or
otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases
be deemed to provide that Section 8, Section 11, Section 12, Section 18 and Section 19 shall remain in full force and effect.


 


(e)               
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or
the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares,
such Placement Shares shall settle in accordance with the provisions of this Agreement.


 


14.             
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:


 


Cantor Fitzgerald & Co.


499 Park Avenue


New York, NY 10022


Attention: Capital
Markets/Jeffrey Lumby


Facsimile: (212) 307-3730


 


with copies to


 


Cantor Fitzgerald & Co.


499 Park Avenue


New York, NY 10022


Attention: General Counsel


Facsimile: (212) 829-4708


 






    	 	-34-	 



     


    

and with a copy to:


 


Latham & Watkins LLP


12670 High Bluff Drive

San Diego, CA 92130

Attention: Cheston J. Larson, Esq.

Facsimile: (858) 523-5450


 


and if to the Company, shall be delivered
to:


 


Cytokinetics, Incorporated


280 East Grand Avenue


South San Francisco, CA 94080

Attention: Chief Financial Officer

Facsimile: (650) 624-1133


Copy to: General Counsel






with a copy to:


 


Cooley LLP


3175 Hanover Street


Palo Alto, CA 94304


Attn: Michael E. Tenta, Esq.


Fax: (650) 849-7400


 


Each party to this Agreement may change such
address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each such notice
or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an
original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on
the next succeeding Business Day, (ii) by Electronic Notice as set forth in the next paragraph, (iii) on the next Business
Day after timely delivery to a nationally-recognized overnight courier or (iv) on the Business Day actually received if deposited
in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business
Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.


 


An electronic communication (“Electronic
Notice”) shall be deemed written notice for purposes of this Section 14 if sent to the electronic mail address specified
by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending Electronic
Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be
entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall
be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.


 






    	 	-35-	 



     


    

15.             
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent
and their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof.
References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of
such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or
their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without
the prior written consent of the other party; provided, however, that the Agent may assign its rights and obligations hereunder
to an affiliate, so long as such affiliate is a registered broker-dealer, thereof without obtaining the Company’s consent.


 


16.             
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.


 


17.             
Entire Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached
hereto and Placement Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither
this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent.
In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect
to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall
be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that
giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of
the parties as reflected in this Agreement. No implied waiver by a party shall arise in the absence of a waiver in writing signed
by such party. No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power,
or privilege hereunder.


 


18.             
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. THE COMPANY 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.


 


19.             
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.


 






    	 	-36-	 



     


    

20.             
Use of Information.The Agent may not provide any information gained in connection with this Agreement and the
transactions contemplated by this Agreement, including due diligence, to any third party other than its legal counsel advising
it on this Agreement unless expressly approved by the Company in writing.


 


21.             
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other
may be made by facsimile electronic transmission.


 


22.             
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.


 






    	 	-37-	 



     


    

23.             
Permitted Free Writing Prospectuses.


 


The Company represents, warrants and agrees
that, unless it obtains the prior written consent of the Agent, which consent shall not be unreasonably withheld, conditioned or
delayed, and the Agent represents, warrants and agrees that, unless it obtains the prior written consent of the Company, which
consent shall not be unreasonably withheld, conditioned or delayed, it has not made and will not make any offer relating to the
Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented
to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as
an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required,
legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any,
listed in Exhibit 23 hereto are Permitted Free Writing Prospectuses.


 


24.             
Absence of Fiduciary Relationship.


 


The Company acknowledges and agrees that:


 


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


 


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


 


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


 


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


 


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


 






    	 	-38-	 



     


    

25.             
Definitions.


 


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


 


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


 


“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 or (ii) any political subdivision of any of the foregoing.


 


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


 


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


 


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


 


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


 


 


 


 


 


 


 






    	 	-39-	 



     


    

[Signature Page Follows]


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	-40-	 



     


    

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


 


 


	 	
        Very truly yours,

         

         

        CYTOKINETICS,
        INCORPORATED

         

         

	 	 
	 	By:	/s/ Ching Jaw
	 	 	Name: Ching Jaw
	 	 	Title: Senior Vice President, Chief Financial Officer


 


 


 


 


 


	 	
        ACCEPTED as of the date first-above written:

         

         

        CANTOR FITZGERALD & CO.

         

         

	 	 
	 	By:	/s/ Jeffrey Lumby
	 	 	Name: Jeffrey Lumby
	 	 	Title: Senior Managing Director
	 	 	 


 


 


 


 





[Signature Page]


Cytokinetics, Incorporated
– Sales Agreement






     


     


    

SCHEDULE 1


 


 


 


__________________________


 


FORM OF PLACEMENT NOTICE


 


__________________________


 


 


 


 


	 	From:	Cytokinetics, Incorporated
	 	 	 
		To:	Cantor Fitzgerald & Co.

Attention: _____________________



 


Subject: Placement Notice


 


Ladies and Gentlemen:


 


Pursuant to the terms and subject to the conditions
contained in the Sales Agreement between Cytokinetics, Incorporated, a Delaware corporation (the “Company”),
and Cantor Fitzgerald & Co. (“Agent”), dated November 3, 2017, the Company hereby requests that the
Agent sell up to ____________ of the Company’s Common Stock, par value $0.001 per share, at a minimum market price of $_______
per share, during the time period beginning [month, day, time] and ending [month, day, time].


 


 


 


 


 






     


     


    

SCHEDULE 2


 


 


 


__________________________


 


Compensation


 


__________________________


 


 


 


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


 


 


 


 


 


 


 






     


     


    

SCHEDULE 3


 


 


 


__________________________


 


Notice Parties


 


__________________________


 


 


 


The Company


 


Robert Blum (rblum@cytokinetics.com)


 


Ching Jaw (cjaw@cytokinetics.com)


 


The Agent


 


Jeffrey Lumby (jlumby@cantor.com)


 


Joshua Feldman (jfeldman@cantor.com)


 


Sameer Vasudev (svasudev@cantor.com)


 


With copies to:


 


CFControlledEquityOffering@cantor.com


 


 


 


 


 






     


     


    

SCHEDULE 4


 


 


 


__________________________


 


Subsidiaries


 


__________________________


 


 


 


Cytokinetics (Bermuda) Ltd.


 


 


 


 


 


 


 


 






     


     


    

EXHIBIT 7(l)(1)


 


Form of Representation Date Certificate


 


The undersigned, the duly qualified and elected                             ,
of Cytokinetics, Incorporated, a Delaware corporation (the “Company”), does hereby certify in such capacity
and on behalf of the Company, pursuant to Section 7(l) of the Sales Agreement, dated November 3, 2017 (the “Sales
Agreement”), between the Company and Cantor Fitzgerald & Co., that to the best of the knowledge of the undersigned:


 


(i) The representations and warranties of the Company in Section 6
of the Sales Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions
contained therein relating to materiality or Material Adverse Effect, are true and correct on and as of the date hereof with the
same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak
solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and
warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof
as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except
for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date;
and


 


(ii) The Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.


 


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


 


 


 


	 	
        CYTOKINETICS,
        INCORPORATED

         

         

         

	 	By: ________________________________
	 	
         

        Name: _______________________________

	 	
         

        Title: ________________________________



 


 


Date: __________________


 


 


 


 


 


 


 


 






     


     


    

EXHIBIT 7(l)(2)


 


CYTOKINETICS, INCORPORATED


 


CFO
CERTIFICATE PURSUANT TO SECTION 7(l) OF THE SALES AGREEMENT


 


[__________, 201__]


 


I, the undersigned, as the Chief Financial Officer of Cytokinetics,
Incorporated, a Delaware corporation (the “Company”), and, solely in my capacity as such, and based upon
an examination of the Company’s consolidated audited and unaudited financial records and statements undertaken by myself
or members of my staff who are responsible for the Company’s financial and accounting matters, do hereby certify that (capitalized
terms used herein without definition have the meanings ascribed to them in the Sales Agreement):


 


(a)               
I am providing this certificate in connection with the issuance and sale by the Company of shares of the Company’s
common stock having aggregate sale proceeds of up to75.0 million of Placement Shares (the “Shares”),
pursuant to the Controlled Equity Offering Sales Agreement, dated as of November 3, 2017 (the “Sales Agreement”)
between the Company and Cantor Fitzgerald & Co. (the “Agent”), as described in the Registration Statement
and Prospectus (the “Offering”).


 


(b)              
I am the duly elected, qualified and acting Chief Financial Officer of the Company and am providing this certificate based
on my examination of the internal accounting records of the Company and its subsidiaries.


 


(c)               
I am knowledgeable with respect to the internal accounting records and internal accounting practices, policies, procedures
and controls of the Company and its subsidiaries and have responsibility for financial and accounting matters with respect to the
Company and its subsidiaries.


 


(d)              
I have reviewed the financial data and information identified by the Agent in certain pages from, or incorporated by reference
into, the Registration Statement and the Prospectus, attached hereto as Annex A (the “Identified Information”)
and have compared such Identified Information to the accounting records of the Company and determined that such Identified Information
is true, correct and accurate in all material respects and that the Identified Information does 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.


 


(e)               
This certificate has been prepared for the benefit of the Agent in connection with the Offering, and the Agent is entitled
to reasonably rely on this CFO Certificate for any purpose related to the Offering.


 


Latham & Watkins LLP and Cooley LLP are entitled to rely on
this certificate in connection with the respective opinions or negative assurance letters such firms are rendering pursuant to
the Sales Agreement.


 


[signature page follows]


 






     


     


    

IN WITNESS WHEREOF, I have hereunto set my hand as of the date first
written above.


 


 


___________________________

Name:

Title: Chief Financial Officer


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






     


     


    

Exhibit 23


 


Permitted Free Writing Prospectus


 


None.