Exhibit 10.1


 


OPEN
MARKET SALE AGREEMENTSM


 


September
25, 2020


 


JEFFERIES LLC

520 Madison Avenue


New York, New York 10022


 


Ladies and Gentlemen:


 


ImmunoGen,
Inc., a Massachusetts corporation (the “Company”), proposes, subject to the terms and conditions stated herein,
to issue and sell from time to time through Jefferies LLC, as sales agent and/or principal (the “Agent”), shares
of the Company’s common stock, par value $0.01 per share (the “Common Shares”), having an aggregate offering
price of up to $100,000,000 on the terms set forth in this agreement (this “Agreement”).


 


Section
1. DEFINITIONS


 


(a)              
Certain Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall
have the following respective meanings:


 


“Affiliate”
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first- mentioned Person. The term “control” (including the terms “controlling,”
 “controlled by” and “under common control with”) means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.


 


“Agency
Period” means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date
on which the Agent shall have placed the Maximum Program Amount pursuant to this Agreement and (y) the date this Agreement is terminated
pursuant to ‎Section 7.


 


“Commission”
means the U.S. Securities and Exchange Commission.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.


 


“Floor Price”
means the minimum price set by the Company in the Issuance Notice below which the Agent shall not sell Shares during the applicable
period set forth in the Issuance Notice, which may be adjusted by the Company at any time during the period set forth in the Issuance
Notice by delivering written notice of such change to the Agent and which in no event shall be less than $1.00 without the prior
written consent of the Agent, which may be withheld in the Agent’s sole discretion.


 





 






SM “Open
Market Sale Agreement” is a service mark of Jefferies LLC


 






     


     


    

 


“Issuance
Amount” means the aggregate Sales Price of the Shares to be sold by the Agent pursuant to any Issuance Notice.


 


“Issuance
Notice” means a written notice delivered to the Agent by the Company in accordance with this Agreement in the form attached
hereto as Exhibit A that is executed by its Chief Executive Officer, President
or Chief Financial Officer.


 


“Issuance
Notice Date” means any Trading Day during the Agency Period that an Issuance Notice is delivered
pursuant to ‎Section 3(b)(i).


 


“Issuance
Price” means the Sales Price less the Selling Commission.


 


“Maximum
Program Amount” means Common Shares with an aggregate Sales Price of the lesser of (a) the number or dollar amount of
Common Shares registered under the effective Registration Statement (as defined below) pursuant to which the offering is being
made, (b) the number of authorized but unissued Common Shares (less Common Shares issuable upon exercise, conversion or exchange
of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), (c) the
number or dollar amount of Common Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if
applicable), or (d) the number or dollar amount of Common Shares for which the Company has filed a Prospectus (as defined below).


 


“Person”
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental authority or other entity of any kind.


 


“Principal
Market” means the Nasdaq Global Select Market or such other national securities exchange on which the Common Shares,
including any Shares, are then listed.


 


“Sales Price”
means the actual sale execution price of each Share placed by the Agent pursuant to this Agreement.


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.


 


“Selling
Commission” means three percent (3%) of the gross proceeds of Shares sold pursuant to this Agreement, or as otherwise
agreed between the Company and the Agent with respect to any Shares sold pursuant to this Agreement.


 


“Settlement
Date” means the second business day following each Trading Day during the period set forth in the Issuance Notice
on which Shares are sold pursuant to this Agreement, when the Company shall deliver to the Agent the amount of Shares sold on
such Trading Day and the Agent shall deliver to the Company the Issuance Price received on such sales.


 


“Shares”
means the Company’s Common Shares issued or issuable pursuant to this Agreement.


 


“Trading Day”
means any day on which the Principal Market is open for trading.


 






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Section
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


The Company represents
and warrants to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Issuance Notice Date, (3) each
Settlement Date, (4) each Triggering Event Date (as defined below) with respect to which the Company is required to deliver a certificate
pursuant to Section 4(o) and (5) as of each Time of Sale (as defined below) (each of the times referenced above is referred
to herein as a “Representation Date”), except as may be disclosed in the Prospectus (including any documents
incorporated by reference therein and any supplements thereto) on or before a Representation Date:


 


(a)              
Registration Statement. The Company has prepared and filed with the Commission a shelf registration statement on
Form S-3 (File No. 333-223507) that contains a base prospectus. Such registration statement registers the issuance
and sale by the Company of the Shares under the Securities Act. 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, with respect
to the Shares. Except where the context otherwise requires, such registration statement(s), including any information deemed to
be a part thereof pursuant to Rule 430B under the Securities Act, including all financial statements, exhibits and schedules thereto
and all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities
Act as from time to time amended or supplemented, is herein referred to as the “Registration Statement,” and
the prospectus constituting a part of such registration statement(s), together with any prospectus supplement filed with the Commission
pursuant to Rule 424(b) under the Securities Act relating to a particular issuance of the Shares, including all documents incorporated
or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each case, as from
time to time amended or supplemented, is referred to herein as the “Prospectus,” except that if any revised
prospectus is provided to the Agent by the Company for use in connection with the offering of the Shares that is not required to
be filed by the Company pursuant to Rule 424(b) under the Securities Act, the term “Prospectus” shall refer
to such revised prospectus from and after the time it is first provided to the Agent for such use. The Registration Statement at
the time it originally became effective is herein called the “Original Registration Statement.” As used in this
Agreement, the terms “amendment” or “supplement” when applied to the Registration Statement or the Prospectus
shall be deemed to include the filing by the Company with the Commission of any document under the Exchange Act after the date
hereof that is or is deemed to be incorporated therein by reference.


 


All references in this
Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” in or “part of” 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 which is or is deemed
to be incorporated by reference in or otherwise deemed under the Securities Act to be a part of or included in the Registration
Statement or the Prospectus, as the case may be, as of any specified date; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to mean and include, without limitation, the filing
of any document under the Exchange Act which is or is deemed to be incorporated by reference in or otherwise deemed under the Securities
Act to be a part of or included in the Registration Statement or the Prospectus, as the case may be, as of any specified date.
The Company’s obligations under this Agreement to furnish, provide or deliver or make available copies of any report or statement
shall be deemed satisfied if the same is filed with the Commission through its Electronic Data Gathering, Analysis and Retrieval
system (“EDGAR”).


 






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At
the time the Registration Statement became or will become originally effective and at the time the Company’s most recent
annual report on Form 10-K was filed with the Commission, if later, the Company met the then-applicable requirements for use
of Form S-3 under the Securities Act. During the Agency Period, each time the Company files an annual report on Form
10-K the Company will meet the then-applicable requirements for use of Form S-3 under the Securities Act.


 


(b)              
Compliance with Registration Requirements. The Original Registration Statement and any Rule 462(b) Registration
Statement are effective under the Securities Act. The Company has complied to the Commission’s satisfaction with all requests
of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending
or, to the best knowledge of the Company, are contemplated or threatened by the Commission.


 


The
Prospectus when filed complied or will comply in all material respects with the Securities Act and, if filed with the Commission
through EDGAR (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof delivered
to the Agent for use in connection with the issuance and sale of the Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective and at each Representation
Date, complied and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading. As of the date of this Agreement, the Prospectus and any Free Writing Prospectus (as defined below) considered together
(collectively, the “Time of Sale Information”) did not contain any 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 under which they were made,
not misleading. The Prospectus, as amended or supplemented, as of its date and at each Representation Date, did not and will not
contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the
three immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any Rule 462(b)
Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made
in reliance upon and in conformity with information relating to the Agent furnished to the Company in writing by the Agent expressly
for use therein, it being understood and agreed that the only such information furnished by the Agent to the Company consists of
the information described in ‎Section 6 below defined as Agent Information. There are no contracts or other documents
required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described
or filed as required. The Registration Statement and the offer and sale of the Shares as contemplated hereby meet the requirements
of Rule 415 under the Securities Act and comply in all material respects with said rule.


 






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(c)              
Ineligible Issuer Status. The Company is not an “ineligible issuer” in connection with the offering of
the Shares pursuant to Rules 164, 405 and 433 under the Securities Act. Any Free Writing Prospectus that the Company is required
to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the
requirements of the Securities Act. Each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to
Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or
will comply in all material respects with the requirements of Rule 433 under the Securities Act including timely filing with the
Commission or retention where required and legending, and each such Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the issuance and sale of the Shares did not, does not and will not include any information that
conflicted, conflicts with or will conflict with the information contained in the Registration Statement or the Prospectus, including
any document incorporated by reference therein. Except for the Free Writing Prospectuses, if any, and electronic road shows, if
any, furnished to the Agent before first use, the Company has not prepared, used or referred to, and will not, without the Agent’s
prior consent, which consent shall not be unreasonably withheld, conditioned or delayed, prepare, use or refer to, any Free Writing
Prospectus.


 


(d)              
Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements
of the Exchange Act, as applicable, and, when read together with the other information in the Prospectus, do not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.


 


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


 


(f)               
Financial Statements.  The financial statements (including the related notes thereto) of the Company
and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus comply
in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present
fairly the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified, it being understood that unaudited interim financial
statements are subject to normal year-end adjustments; such financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby, except
as may be otherwise specified therein or to the extent unaudited interim financial statements exclude footnotes or may be condensed
or summary statements, and any supporting schedules included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; and the other financial information included or incorporated by reference
in the Registration Statement and the Prospectus has been derived from the accounting records of the Company and its consolidated
subsidiaries and presents fairly the information shown thereby. To the Company’s knowledge, no person who has been suspended
or barred from being associated with a registered public accounting firm, or who has failed to comply with any sanction pursuant
to Rule 5300 promulgated by the PCAOB, has participated in or otherwise aided the preparation of, or audited, the financial statements,
supporting schedules or other financial data filed with the Commission as a part of the Registration Statement and the Prospectus.


 






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(g)              
No Material Adverse Change.  Except as otherwise disclosed in the Registration Statement and the Prospectus,
subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus: (i) 
there has been no material adverse change, or any development that would result in a material adverse change, in (A) the condition,
financial or otherwise, or in the shareholders’ equity, earnings, business, properties, management, operations, operating
results, assets, liabilities or prospects, whether or not arising from transactions in the ordinary course of business, of the
Company and its subsidiaries, considered as one entity or (B) the ability of the Company to consummate the transactions contemplated
by this Agreement or perform its obligations hereunder (any such change being referred to herein as a “Material Adverse
Change”); (ii) there has not been any change in the capital stock (other than the issuance of Stock issued pursuant to
the exercise of stock options or vesting of deferred stock units or restricted stock units under the Company Stock Plans (as defined
below), the issuance of restricted stock under the Company Stock Plans, or the issuance of sock under the Company’s existing
employee stock purchase plan), long-term debt, notes payable or current portion of long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class
of capital stock; (iii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that
is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company and its subsidiaries taken as a whole; and (iv) neither the Company nor any of its subsidiaries
has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental
or regulatory authority.


 


(h)              
Organization and Good Standing.  The Company and each of its “subsidiaries” (for purposes
of this Agreement, as defined in Rule 405 under the Securities Act) have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing
in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires
such qualification, and have the corporate and authority necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority
would not, individually or in the aggregate, result in a Material Adverse Change.  All of the issued and outstanding capital
stock or other equity or ownership interests of each of the Company’s subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or adverse claim. None of the outstanding capital stock or equity interest
in any subsidiary was issued in violation of preemptive or similar rights of any security holder of such subsidiary. The constitutive
or organizational documents of each of the subsidiaries comply in all material respects with the requirements of applicable laws
of its jurisdiction of incorporation or organization and are in full force and effect. The Company does not own or control, directly
or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the Company’s
most recent Annual Report on Form 10-K.


 






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(i)                
Capitalization.  The Company has an authorized capitalization as set forth in the Registration Statement
and the Prospectus; all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and are not subject to any pre-emptive or similar rights; except as described in or expressly
contemplated by the Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other equity interest in
the Company or any of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind relating
to the issuance of any capital stock of the Company or any such subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options; the capital stock of the Company conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus; and all the outstanding shares of capital stock or other equity interests
of each subsidiary owned, directly or indirectly, by the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of any third party. None of the outstanding capital stock or equity
interest in any subsidiary was issued in violation of preemptive or similar rights of any security holder of such subsidiary.


 


(j)                
Stock Options.  With respect to the stock options (the “Stock Options”) granted pursuant
to the stock-based compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) each
grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to
be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the
board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval
by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (ii) each such grant was, in all material respects, made in accordance with the terms of
the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the
Code, the rules of the Principal Market and any other exchange on which Company securities are traded, and (iii) each
such grant was, in all material respects, properly accounted for in accordance with U.S. generally accepted accounting principles
in the financial statements (including the related notes) of the Company and disclosed in the Company’s filings with the
Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there
is no and has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinating the grant
of Stock Options with, the release or other public announcement of material information regarding the Company or its subsidiaries
or their results of operations or prospects. The descriptions of the Company’s stock option, stock bonus and other stock
plans or arrangements, and the options or other rights granted thereunder, set forth in the Registration Statement and the Prospectus
accurately and fairly presents, in all material respects, the information required to be shown with respect to such plans, arrangements,
options and rights.


 






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(k)              
Due Authorization.  The Company has full right, power and authority to execute and deliver this Agreement
and to perform its obligations hereunder; and all action required to be taken for the due and proper authorization, execution and
delivery by it of this Agreement and the consummation of the transactions contemplated hereby has been duly and validly taken.


 


(l)                
This Agreement.  This Agreement has been duly authorized, executed and delivered by the Company.


 


(m)            
The Shares.  The Shares to be issued and sold by the Company hereunder have been duly authorized by the
Company and, when issued and delivered and paid for as provided herein, will be duly and validly issued and will be fully paid
and nonassessable and will conform to the descriptions thereof in the Registration Statement and the Prospectus; and the issuance
of the Shares is not subject to any preemptive or similar rights, other than those which were complied with by the Company.


 


(n)              
Description of this Agreement.  This Agreement conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus.


 


(o)              
No Violation or Default.  Neither the Company nor any of its subsidiaries is (i) in violation of
its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or
lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject; or (iii) in violation of 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 clauses (ii) and
(iii) above, for any such default or violation that would not, individually or in the aggregate, result in a Material Adverse
Change.


 


(p)              
No Conflicts.  The execution, delivery and performance by the Company of this Agreement, the issuance
and sale of the Shares and the consummation of the transactions contemplated by this Agreement or the Prospectus have been duly
authorized by all necessary corporate action and will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject,
(ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company
or any of its subsidiaries or (iii) result in the violation of 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 clauses (i) and (iii) above,
for any such conflict or violation that would not, individually or in the aggregate, result in a Material Adverse Change.


 






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(q)              
No Consents Required.  No consent, approval, authorization, order, license, 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, the issuance and sale of the Shares and the consummation of the transactions contemplated by
this Agreement, except for the registration of the Shares under the Securities Act, as may be required by the Financial Industry
Regulatory Authority, Inc. (“FINRA”) and under applicable state or foreign securities laws in connection
with the purchase and distribution of the Shares.


 


(r)               
Legal Proceedings.  Except as described in the Registration Statement and the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any of its subsidiaries is or may be the subject that, individually
or in the aggregate, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to result
in a Material Adverse Change; to the knowledge of the Company, no such investigations, actions, suits or proceedings are threatened
or contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings that are required under the Securities Act to be described in the
Registration Statement or the Prospectus that are not so described in the Registration Statement and the Prospectus and (ii) there
are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits
to the Registration Statement or described in the Registration Statement or the Prospectus that are not so filed as exhibits to
the Registration Statement or described in the Registration Statement and the Prospectus.


 


(s)               
Independent Accountants.  Ernst & Young LLP, who have certified certain financial statements
of the Company and its subsidiaries, is an independent registered public accounting firm with respect to the Company and its subsidiaries
within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United
States) and as required by the Securities Act.


 


(t)                
Title to Real and Personal Property.  Except as described in the Registration Statement and the Prospectus,
the Company and its subsidiaries have good and marketable title in fee simple (in the case of real property) to, or have valid
rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses of the
Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title
except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company
and its subsidiaries or (ii) would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse
Change.


 


(u)              
Title to Intellectual Property.  Except as described in the Registration Statement and the Prospectus,
the Company and its subsidiaries own, or have obtained valid and enforceable licenses for, or other rights to use, the inventions,
patent applications, patents, trademarks (both registered and unregistered), trade names, copyrights, trade secrets and other proprietary
information (collectively, the “Intellectual Property”) described in the Registration Statement and the Prospectus
as being owned or licensed by them; to the Company’s knowledge and except as described in the Registration Statement and
the Prospectus, the Company and its subsidiaries own, or have obtained valid and enforceable licenses for, or other rights to use,
all Intellectual Property used in, or necessary for the conduct of, their respective businesses as described in the Registration
Statement and the Prospectus, except as would not reasonably be expected to result in a Material Adverse Change; to the Company’s
knowledge, there is no pending or threatened action, suit, proceeding or claim by others that the Company infringes or otherwise
violates any Intellectual Property rights of others, except as would not reasonably be expected to result in a Material Adverse
Change, and the Company is unaware of any facts which could form a reasonable basis for any such claim; and none of the technology
employed by the Company has been obtained or is being used by the Company in violation of any contractual obligation binding on
the Company or, to the Company’s knowledge, upon any of its officers, directors or employees. To the Company’s knowledge,
there are no third parties who have or will be able to establish rights to any Intellectual Property described in the Registration
Statement and the Prospectus as exclusively owned or exclusively licensed by the Company, except as would not reasonably be expected
to result in a Material Adverse Change or except for licenses granted in writing by the Company or its subsidiaries to any third-parties
(“Exclusive Intellectual Property”); there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the Company’s ownership or rights in or to any Exclusive Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis for any such claim except as could not reasonably be
expected to result in a Material Adverse Change; 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 Exclusive Intellectual Property, and the Company is unaware
of any facts which would form a reasonable basis for any such claim except as could not reasonably be expected to result in a Material
Adverse Change; to the Company’s knowledge, there is no patent or patent application that contains claims that interfere
with the issued or pending claims of any of the Intellectual Property except as would not reasonably be expected to result in a
Material Adverse Change; and to the Company’s knowledge, there is no prior art material to any patent or patent application
of the Exclusive Intellectual Property that has not been disclosed to the U.S. Patent and Trademark Office, except as would not
reasonably be expected to result in a Material Adverse Change.


 






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(v)              
No Undisclosed Relationships.  No relationship, direct or indirect, exists between or among the Company
or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or
any of its subsidiaries, on the other, that is required by the Securities Act to be described in the Registration Statement and
the Prospectus and that is not so described in such documents.


 


(w)            
Investment Company Act.  The Company is not and, after giving effect to the offering and sale of the
Shares and the application of the proceeds thereof as described in the Registration Statement and the Prospectus, will not be required
to register as an “investment company” or an entity “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Investment Company Act”).


 






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(x)              
Taxes.  The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed
all tax returns required to be paid or filed through the date hereof; and except as otherwise disclosed in the Registration Statement
and the Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be, asserted against the Company
or any of its subsidiaries or any of their respective properties or assets; except in each case where such failure to file or such
tax deficiency would not result in a Material Adverse Change.


 


(y)              
Licenses and Permits.  Except as otherwise disclosed Prospectus, the Company and its subsidiaries possess
all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate
federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses as described in the Registration Statement and the Prospectus,
except where the failure to possess or make the same would not, individually or in the aggregate, result in a Material Adverse
Change; and except as described in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries
has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason
to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.


 


(z)              
No Labor Disputes.  No labor disturbance by or dispute with employees of the Company or any of its subsidiaries
exists or, to the best knowledge of the Company, is contemplated or threatened and the Company is not aware of any existing or
imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries’ principal suppliers, contractors
or customers, except as would not result in a Material Adverse Change.


 


(aa)           
Compliance with and Liability under Environmental Laws; Hazardous Materials. Except, in each case set forth in this
Section 2(aa), as described in the Registration Statement and the Prospectus, or as would not, individually or in the aggregate,
result in a Material Adverse Change, (i) the Company and each of its subsidiaries and their respective properties, assets
and operations are in compliance with Environmental Laws (as defined below), (ii) there are no past or present events, conditions,
circumstances, activities, practices, actions, omissions or plans that could reasonably be expected to give rise to any costs or
liabilities to the Company or any of its subsidiaries under, or to interfere with or prevent compliance by the Company or any of
its subsidiaries with, Environmental Laws, (iii) none of the Company or any of its subsidiaries (A) to the knowledge
of the Company, is the subject of any investigation, (B) has received any notice or claim, (C) is a party to any pending or,
to the Company’s knowledge, threatened action, suit or proceeding, (D) is bound by any judgment, decree or order or
(E) has entered into any agreement, in each case relating to any alleged violation of any Environmental Law or any actual
or alleged release or threatened release or cleanup at any location of any Hazardous Materials (as defined below) (as used herein,
 “Environmental Law” means any federal, state, local or foreign law, statute, ordinance, rule, regulation, order,
decree, judgment, injunction, permit, license, authorization or other binding requirement, or common law, relating to human health
or safety or the protection, cleanup or restoration of the environment or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal, transportation, other handling or release or threatened release of Hazardous
Materials, and “Hazardous Materials” means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may give rise to liability under any Environmental Law).


 






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(bb)          
Compliance With ERISA.  (i) Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member
of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within
the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any
liability (each, a “Plan”) 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 Code; (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any
Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each 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, whether or not waived, has occurred or is reasonably expected to occur; (iv) either
the fair market value of the assets of each Plan, which is required to be funded under the Code or ERISA, exceeds the present value
of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan) or each such Plan is funded
in accordance with ERISA or the Code; (v) no “reportable event” (within the meaning of Section 4043(c) of
ERISA) has occurred or is reasonably expected to occur; (vi) neither the Company nor any member of the Controlled Group has
incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums
to the PBGC, in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within
the meaning of Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or investigation by the Internal
Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental agency or any
foreign regulatory agency with respect to any Plan that could reasonably be expected to result in material liability to the Company
or its subsidiaries.


 


(cc)           
Disclosure Controls.  The Company and its subsidiaries maintain an effective system of “disclosure controls
and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange
Act and that has been designed to ensure that information required to be disclosed by the Company in 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 controls and procedures designed to ensure that such information is accumulated and communicated
to the Company’s management as appropriate to allow timely decisions regarding required disclosure.  The Company and
its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15
of the Exchange Act.


 


(dd)          
Accounting Controls.  The Company and its subsidiaries maintain systems of “internal control over
financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the
Exchange Act and have been designed by, or under the supervision of, the Company’s principal executive and principal financial
officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles,
including, but not limited to internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.  Except as disclosed in the Registration Statement and the Prospectus, there
are no material weaknesses in the Company’s internal controls.  The Company’s auditors and the Audit Committee
of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in
the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the Company’s
ability to record, process, summarize and report financial information; and (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.


 






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(ee)           
Insurance.  The Company and its subsidiaries have insurance covering their respective properties, operations,
personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses
and risks as the Company considers to be in accordance with customary industry practice for companies of comparable size, market
capitalization and stage of business and clinical development to protect the Company and its subsidiaries and their respective
businesses; and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance
or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business. Neither
the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.


 


(ff)             
No Unlawful Payments.  Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, employee, agent or other person associated with or acting on behalf of the Company or any of its subsidiaries
has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political
activity; (ii) made or taken any act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment
or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or
of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing,
or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision
of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the UK Bribery Act 2010, or any
other applicable anti-bribery or anti-corruption law; or (iv) made, offered, authorized, requested or taken an act in furtherance
of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback
or other unlawful or improper payment or benefit. The Company and its subsidiaries and, to the knowledge of the Company, the Company’s
Affiliates have conducted their respective businesses in compliance with the FCPA and have instituted, maintain and enforce, and
will continue to maintain and enforce, policies and procedures designed to promote and ensure, and which are reasonably expected
to continue to promote and ensure, compliance with all applicable anti-bribery and anti-corruption laws.


 






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


 


(hh)           Compliance
with Sanctions Laws.  Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company,
after due inquiry, any director, officer, employee, agent, Affiliate or other person associated with or acting on behalf of
the Company or any of its subsidiaries is currently the subject or the target of any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations
Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom, or other relevant sanctions
authority (collectively, “Sanctions”); nor is the Company or any of its subsidiaries located, organized or
resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Crimea,
Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Company will not directly or
indirectly use the proceeds of the offering of the Shares, or lend, contribute or otherwise make available such proceeds to
any subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of or
business with any person, or in any country or territory, that, at the time of such financing, is the subject or the target
of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the
transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise) of Sanctions. For the past five
years, the Company and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or
transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions
or with any Sanctioned Country.


 


(ii)             
Affiliations. To the Company’s knowledge, there are no affiliations
or associations between (i) the Agent and (ii) the Company or any of the Company’s officers, directors or 5% or greater
security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time
on or after the 180th day immediately preceding the date the Registration Statement was initially filed with the Commission, except
as disclosed in the Registration Statement and the Prospectus.


 


(jj)             
No Restrictions on Subsidiaries.  Except as disclosed in the Prospectus, no subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying
any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties
or assets to the Company or any other subsidiary of the Company.


 


(kk)          
No Broker’s Fees.  Except as otherwise disclosed in the Prospectus, neither the Company nor any
of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against the Company or any of its subsidiaries or the Agent for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Shares.


 






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(ll)             
No Registration Rights.  No person has the right to require the Company or any of its subsidiaries to register
any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Shares.


 


(mm)     
No Stabilization.  The Company has not taken, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Common Shares.


 


(nn)          
Business With Cuba.  The Company has complied with all provisions of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida, as amended) relating to doing business with the Government of Cuba or with any person or
affiliate located in Cuba.


 


(oo)          
Margin Rules.  The application of the proceeds received by the Company from the issuance, sale and delivery
of the Shares as described in the Registration Statement and the Prospectus will not 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)          
Forward-Looking Statements.  No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.


 


(qq)          
Statistical and Market Data.  Nothing has come to the attention of the Company that has caused the Company
to believe that the statistical and market-related data included in the Registration Statement and the Prospectus is not based
on or derived from sources that are reliable and accurate in all material respects. To the extent required, the Company has obtained
the written consent for the use of such data from such sources.


 


(rr)             
Sarbanes-Oxley Act.  There is and has been no failure on the part of the Company or, to the knowledge of the
Company, any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 related to loans and Sections 302 and 906 related to certifications.


 






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(ss)            
FDA Compliance.  Except as described in the Registration Statement and the Prospectus, the Company:  (A) is
and at all times has been in material compliance with all statutes, rules or regulations of the U.S. Food and Drug Administration
(“FDA”) and other comparable federal, state, local or foreign governmental or regulatory authority (“Governmental
Authority”) 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 under development, manufactured
or distributed by the Company (“Applicable Laws”); (B) has not received any FDA Form 483, notice of
adverse finding, warning letter, untitled letter or other correspondence or written notice from the FDA or any Governmental Authority
alleging or asserting material 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”), which
would, individually or in the aggregate, result in a Material Adverse Change; (C) possesses all material Authorizations and
such Authorizations are valid and in full force and effect and the Company is not in material violation of any term of any such
Authorizations; (D) has not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from the FDA or any Governmental Authority or third party alleging that any product operation or activity
is in material violation of any Applicable Laws or Authorizations and has no knowledge that the FDA or any Governmental Authority
or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has
not received written notice that the FDA or any Governmental Authority has taken, is taking or intends to take action to limit,
suspend, modify or revoke any material Authorizations and has no knowledge that the FDA or any Governmental Authority is considering
such action; and (F) has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such
reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete
and correct on the date filed (or were corrected or supplemented by a subsequent submission).


 


(tt)             
Clinical Studies. The nonclinical studies and clinical trials conducted by or, to the Company’s knowledge,
on behalf of the Company were and, if still ongoing, are being conducted in all material respects in accordance with experimental
protocols, procedures and controls pursuant to accepted professional scientific standards and all Applicable Laws and Authorizations,
including, without limitation, the Federal Food, Drug and Cosmetic Act and the rules and regulations promulgated thereunder;
the descriptions of the results of such nonclinical studies and clinical trials contained in the Registration Statement and the
Prospectus are, to the Company’s knowledge, accurate and complete in all material respects and fairly present the data derived
from such nonclinical studies and clinical trials; except to the extent disclosed in the Registration Statement and the Prospectus,
the Company is not aware of any nonclinical studies or clinical trials, the results of which the Company believes reasonably call
into question the study or trial results described or referred to in the Registration Statement and the Prospectus when viewed
in the context in which such results are described and the clinical stage of development; and, except to the extent disclosed in
the Registration Statement or the Prospectus, the Company has not received any written notices or other correspondence from the
FDA or any Governmental Authority requiring the termination, suspension or material modification of any nonclinical studies, clinical
trials conducted by or on behalf of the Company.


 


(uu)          
Compliance with Health Care Laws. The Company is not a party to or has any ongoing reporting obligations pursuant
to any corporate integrity agreements, deferred prosecution agreements, monitoring agreements, consent decrees, settlement orders,
plans of correction or similar agreements with or imposed by any Governmental Authority. Additionally, neither the Company nor
any of its employees, officers or directors has been excluded, suspended or debarred from participation in any government health
care program or human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation,
proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.




 






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(vv)          
eXtensible Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or
incorporated by reference in 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.


 


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


 


(xx)          
Compliance with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times within the last five
years were, in material compliance with all applicable state and federal data privacy and security laws and regulations, including
without limitation HIPAA, and the Company and its subsidiaries have taken commercially reasonable actions to prepare to comply
with, and since May 25, 2018, have been and currently are in material compliance with, the European Union General Data Protection
Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”). To ensure compliance
with the Privacy Laws, the Company and its subsidiaries have in place, comply with, and take appropriate steps reasonably designed
to ensure compliance in all material respects with their policies and procedures relating to data privacy and security and the
collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”). The Company
and its subsidiaries have at all times made all disclosures to users or customers required by applicable laws and regulatory rules
or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate
or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies
that neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual
or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected
to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation,
or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any
obligation or liability under any Privacy Law.


 






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(yy)          
Stock Exchange Listing. The Common Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and
are listed on the Principal Market, and the Company has taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Shares under the Exchange Act or delisting the Common Shares from the Principal Market, nor has
the Company received any notification that the Commission or the Principal Market is contemplating terminating such registration
or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements of the Principal Market.


 


(zz)           
FINRA Matters. All of the information provided to the Agent or to counsel for the Agent by the Company, its counsel,
its officers and directors and, to the knowledge of the Company, the holders of any securities (debt or equity) or options to acquire
any securities of the Company in connection with the offering of the Shares is true, complete, correct and compliant with FINRA’s
rules and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA Rules is true, complete
and correct. The Company meets the requirements for use of Form S-3 under the Securities Act specified in FINRA Rule 5110(b)(7)(C)(i).


 


(aaa)       
Compliance with Laws. The Company and its subsidiaries have been and are in compliance with all applicable laws,
rules and regulations, except where failure to be so in compliance would not, individually or in the aggregate, result in a Material
Adverse Change.


 


(bbb)      
Duties, Transfer Taxes, Etc. No stamp or other issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by the Agent in the United States or any political subdivision or taxing authority thereof
or therein in connection with the execution, delivery or performance of this Agreement by the Company or the sale and delivery
by the Company of the Shares.


 


(ccc)       
Other Underwriting 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.


 


Any certificate signed
by any officer or representative of the Company or any of its subsidiaries and delivered to the Agent or counsel for the Agent
in connection with an issuance of Shares shall be deemed a representation and warranty by the Company to the Agent as to the matters
covered thereby on the date of such certificate.


 


The
Company acknowledges that the Agent and, for purposes of the opinions to be delivered pursuant to ‎Section 4(o)
hereof, counsel to the Company and counsel to the Agent, will rely upon the accuracy and truthfulness of the foregoing representations,
including any officer’s certificate representations, and hereby consents to such reliance.


 






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Section
3. ISSUANCE AND SALE OF COMMON SHARES


 


(a)              
Sale of Securities. On the basis of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company and the Agent agree that the Company may from time to time seek to sell
Shares through the Agent, acting as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate Sales
Price of up to the Maximum Program Amount, based on and in accordance with Issuance Notices as the Company may deliver, during
the Agency Period.


 


(b)              
Mechanics of Issuances.


 


(i)
Issuance Notice. Upon the terms and subject to the conditions set forth herein, on any Trading Day during the Agency Period
on which the conditions set forth in ‎Section 5(a) and ‎Section 5(b) shall have been satisfied, the
Company may exercise its right to request an issuance of Shares by delivering to the Agent an Issuance Notice; provided, however,
that (A) in no event may the Company deliver an Issuance Notice to the extent that (I) the sum of (x) the aggregate Sales Price
of the requested Issuance Amount, plus (y) the aggregate Sales Price of all Shares issued under all previous Issuance Notices effected
pursuant to this Agreement, would exceed the Maximum Program Amount; and (B) prior to delivery of any Issuance Notice, the period
set forth for any previous Issuance Notice shall have expired or been terminated. An Issuance Notice shall be considered delivered
on the Trading Day that it is received by e-mail to the persons set forth in Schedule A hereto and confirmed by the Company by
telephone (including a voicemail message to the persons so identified), with the understanding that, with adequate prior written
notice, the Agent may modify the list of such persons from time to time.


 


(ii)       Agent
Efforts. Upon the terms and subject to the conditions set forth in this Agreement, upon the receipt of an Issuance Notice,
the Agent will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the Shares
with respect to which the Agent has agreed to act as sales agent, subject to, and in accordance with the information specified
in, the Issuance Notice, unless the sale of the Shares described therein has been suspended, cancelled or otherwise terminated
in accordance with the terms of this Agreement. For the avoidance of doubt, the parties to this Agreement may modify an Issuance
Notice at any time provided they both agree in writing to any such modification.


 


(iii)       Method
of Offer and Sale. The Shares may be offered and sold (A) in privately negotiated transactions with the consent of the Company;
(B) as block transactions; or (C) by any other method permitted by law deemed to be an “at the market offering” as
defined in Rule 415(a)(4) under the Securities Act, including sales made directly on the Principal Market or sales made into any
other existing trading market of the Common Shares. Nothing in this Agreement shall be deemed to require either party to agree
to the method of offer and sale specified in the preceding sentence, and (except as specified in clauses (A) and (B) above) the
method of placement of any Shares by the Agent shall be at the Agent’s discretion.


 


(iv)       Confirmation
to the Company. If acting as sales agent hereunder, the Agent will provide written confirmation to the Company no later than
the opening of the Trading Day following the Trading Day on which it has placed Shares hereunder setting forth the number of shares
sold on such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof.


 






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(v)       Settlement.
Each issuance of Shares will be settled on the applicable Settlement Date for such issuance of Shares and, subject to the provisions
of ‎Section 5, on or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Shares being sold by crediting the Agent’s or its designee’s account at The Depository Trust Company through
its Deposit/Withdrawal At Custodian (DWAC) System, or by such other means of delivery as may be mutually agreed upon by the parties
hereto and, upon receipt of such Shares, which in all cases shall be freely tradable, transferable, registered shares in good deliverable
form, the Agent will deliver, by wire transfer of immediately available funds, the related Issuance Price in same day funds delivered
to an account designated by the Company prior to the Settlement Date. The Company may sell Shares to the Agent as principal at
a price agreed upon at each relevant time Shares are sold pursuant to this Agreement (each, a “Time of Sale”).


 


(vi)       Suspension
or Termination of Sales. Consistent with standard market settlement practices, the Company or the Agent may, upon notice to
the other party hereto in writing or by telephone (confirmed immediately by verifiable email), suspend any sale of Shares, and
the period set forth in an Issuance Notice shall immediately terminate; provided, however, that (A) such suspension and
termination shall not affect or impair either party’s obligations with respect to any Shares placed or sold hereunder prior
to the receipt of such notice; (B) if the Company suspends or terminates any sale of Shares after the Agent confirms such sale
to the Company, the Company shall still be obligated to comply with ‎Section 3(b)(v) with respect to such Shares;
and (C) if the Company defaults in its obligation to deliver Shares on a Settlement Date, the Company agrees that it will hold
the Agent harmless against any loss, claim, damage or expense (including, without limitation, penalties, interest and reasonable
legal fees and expenses), as incurred, arising out of or in connection with such default by the Company. The parties hereto acknowledge
and agree that, in performing its obligations under this Agreement, the Agent may borrow Common Shares from stock lenders in the
event that the Company has not delivered Shares to settle sales as required by subsection (v) above, and may use the Shares to
settle or close out such borrowings. The Company agrees that no such notice shall be effective against the Agent unless it is made
to the persons identified in writing by the Agent pursuant to ‎Section 3(b)(i).


 


(vii)       No
Guarantee of Placement, Etc. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be
successful in placing Shares; (B) the Agent will incur no liability or obligation to the Company or any other Person if it does
not sell Shares; and (C) the Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement,
except as otherwise specifically agreed by the Agent and the Company.


 


(viii)       Material
Non-Public Information. Notwithstanding any other provision of this Agreement, the Company and the Agent agree that the Company
shall not deliver any Issuance Notice to the Agent, and the Agent shall not be obligated to place any Shares, during any period
in which the Company is in possession of material non-public information.


 


(c)              
Fees. As compensation for services rendered, the Company shall pay to the Agent, on the applicable Settlement Date,
the Selling Commission for the applicable Issuance Amount (including with respect to any suspended or terminated sale pursuant
to Section 3(b)(vi)) by the Agent deducting the Selling Commission from the applicable Issuance Amount.


 






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(d)              
Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses
incident to the issuance and delivery of the Shares (including all printing and engraving costs); (ii) all fees and expenses
of the registrar and transfer agent of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale of the Shares; (iv) all fees and expenses of the Company’s counsel, independent public or
certified public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents
and certificates of experts), the Prospectus, any Free Writing Prospectus prepared by or on behalf of, used by, or referred to
by the Company, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, attorneys’ fees
and expenses incurred by the Company or the Agent in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Shares for offer and sale under the state securities or blue sky laws
or the provincial securities laws of Canada, and, if requested by the Agent, preparing and printing a “Blue Sky Survey”
or memorandum and a “Canadian wrapper,” and any supplements thereto, advising the Agent of such qualifications, registrations,
determinations and exemptions; (vii) the reasonable and documented fees and disbursements of the Agent’s counsel, including the
reasonable and documented fees and expenses of counsel for the Agent in connection with, FINRA review, if any, and approval of
the Agent’s participation in the offering and distribution of the Shares; (viii) the filing fees incident to FINRA review,
if any; (ix) all fees, expenses and disbursements relating to background checks of the Company’s directors, director nominees
and executive officers; (x) the costs and expenses of the Company relating to investor presentations on any “road show”
undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with
the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company,
travel and lodging expenses of the representatives, employees and officers of the Company and of the Agent and any such consultants,
and the cost of any aircraft chartered in connection with the road show; and (xi) the fees and expenses associated with listing
the Shares on the Principal Market. The fees and disbursements of the Agent’s counsel pursuant to subsections (vi) and (vii)
above shall not exceed (A) $50,000 in connection with the entry into this agreement and (B) $15,000 in connection with each Triggering
Event Date (as defined below) on which the Company is required to provide a certificate pursuant to Section 4(o).


 


Section
4. ADDITIONAL COVENANTS


 


The Company covenants
and agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:


 


(a)              
Exchange Act Compliance. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission
all reports and documents required to be filed under Section 13, 14 or 15 of the Exchange Act (taking into account any extension
available under the Exchange Act) in the manner and within the time periods required by the Exchange Act; and (ii) either (A) include
in its quarterly reports on Form 10-Q and its annual reports on Form 10-K, a summary detailing, for the relevant reporting period,
(1) the number of Shares sold through the Agent pursuant to this Agreement and (2) the net proceeds received by the Company from
such sales or, in the Company’s sole discretion, (B) prepare a prospectus supplement containing, or include in such other
filing permitted by the Securities Act or Exchange Act (each an “Interim Prospectus Supplement”), such summary
information and, at least once a quarter and subject to this Section 4, file such Interim Prospectus Supplement pursuant
to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430B under the Securities
Act); provided, however, that prior notice is given to the Agent of any such filing of an Interim Prospectus Supplement.


 






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(b)              
Securities Act Compliance. After the date of this Agreement, the Company shall promptly advise the Agent in writing,
in each case insofar as it relates to the Shares or the transactions contemplated by this Agreement, (i) of the receipt of any
comments of, or requests for additional or supplemental information from, the Commission; (ii) of the time and date of any filing
of any post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement or any amendment or supplement
to the Prospectus, or any Free Writing Prospectus; (iii) of the time and date that any post-effective amendment to the Registration
Statement or any Rule 462(b) Registration Statement becomes effective; and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, any Rule 462(b) Registration
Statement or any amendment or supplement to the Prospectus or of any order preventing or suspending the use of any Free Writing
Prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Shares
from any securities exchange upon which they are listed for trading or included or designated for quotation, or of the threatening
or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at any time, the Company
will use its reasonable best efforts to obtain the lifting of such order as soon as practicable. Additionally, the Company agrees
that it shall comply with the provisions of Rule 424(b) and Rule 433, as applicable, under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) or Rule 433 were filed in a timely manner
with the Commission.


 


(c)              
Amendments and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if in the opinion of the Agent or counsel
for the Agent it is otherwise necessary to amend or supplement the Prospectus to comply with applicable law, including the Securities
Act, the Company agrees (subject to Sections 4(d) and 4(f)) to promptly prepare, file with the Commission and
furnish at its own expense to the Agent, such amendments or supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not
be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law including the Securities Act.
Neither the Agent’s consent to, or delivery of, any such amendment or supplement shall constitute a waiver of any of the
Company’s obligations under Sections 4(d) and 4(f). Notwithstanding the foregoing, the Company shall not be
required to file such amendment or supplement if there is no pending Issuance Notice and the Company believes that it is in its
best interests not to file such amendment or supplement.


 






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(d)               
Agent’s Review of Proposed Amendments and Supplements. Prior to amending or supplementing the Registration
Statement (including any registration statement filed under Rule 462(b) under the Securities Act) or the Prospectus (excluding
any amendment or supplement through incorporation of any report filed under the Exchange Act), the Company shall furnish to the
Agent for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each such proposed
amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement without the Agent’s
prior consent, which consent shall not be unreasonably withheld, conditioned or delayed, and to file with the Commission within
the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule;
provided, however, that the Company has no obligation to provide the Agent any advance copy of such filing if the filing does not
name the Agent and does not relate to the Shares or the transactions contemplated by this Agreement.


 


(e)              
Use of Free Writing Prospectus. Neither the Company nor the Agent has prepared, used, referred to or distributed,
or will prepare, use, refer to or distribute, without the other party’s prior written consent, any “written communication”
that constitutes a “free writing prospectus” as such terms are defined
in Rule 405 under the Securities Act with
respect to the offering contemplated by this Agreement (any such free writing prospectus being referred to herein as a
 “Free Writing Prospectus”).


 


(f)               
Free Writing Prospectuses. The Company shall furnish to the Agent for review, a reasonable amount of time prior to
the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto
to be prepared by or on behalf of, used by, or referred to by the Company and the Company shall not file, use or refer to any proposed
free writing prospectus or any amendment or supplement thereto without the Agent’s consent, which consent shall not be unreasonably
withheld, conditioned or delayed. The Company shall furnish to the Agent, without charge, as many copies of any free writing prospectus
prepared by or on behalf of, or used by the Company, as the Agent may reasonably request. If at any time when a prospectus is required
by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of
the Shares (but in any event if at any time through and including the date of this Agreement) there occurred or occurs an event
or development as a result of which any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company
conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue
statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances prevailing at that subsequent time, not misleading, the Company shall promptly amend or supplement
such free writing prospectus to eliminate or correct such conflict or so that the statements in such free writing prospectus as
so amended or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances prevailing at such subsequent time, not misleading, as
the case may be; provided, however, that prior to amending or supplementing any such free writing prospectus, the Company
shall furnish to the Agent for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy
of such proposed amended or supplemented free writing prospectus and the Company shall not file, use or refer to any such amended
or supplemented free writing prospectus without the Agent’s consent, which consent shall not be unreasonably withheld, conditioned
or delayed. Notwithstanding the foregoing, the Company has no obligation to provide the Agent any advance copy of such filing if
the filing does not name the Agent and does not relate to the Shares or the transactions contemplated by this Agreement.


 






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(g)              
Filing of Agent Free Writing Prospectuses. The Company shall not take any action that would result in the Agent or
the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of the Agent that the Agent otherwise would not have been required to file thereunder.


 


(h)              
Copies of Registration Statement and Prospectus. After the date of this Agreement through the last time that a prospectus
is required by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with
sales of the Shares, the Company agrees to furnish the Agent with copies (which may be electronic copies) of the Registration Statement
and each amendment thereto, and with copies (which may be electronic copies) of the Prospectus and each amendment or supplement
thereto in the form in which it is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities
Act, both in such quantities as the Agent may reasonably request from time to time; and, if the delivery of a prospectus is required
under the Securities Act or under the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable
Settlement Date for any period set forth in an Issuance Notice in connection with the offering or sale of the Shares and if at
such time any event has occurred 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 any material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary during
such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Agent and to request that the Agent
suspend offers to sell Shares (and, if so notified, the Agent shall cease such offers as soon as practicable); and if the Company
decides to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to advise the Agent
promptly by telephone (with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment
or supplement to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement
or omission or effect such compliance; provided, however, that if during such same period the Agent is required to deliver a prospectus
in respect of transactions in the Shares, the Company shall promptly prepare and file with the Commission such an amendment or
supplement.


 


(i)                
Blue Sky Compliance. The Company shall cooperate with the Agent and counsel for the Agent to qualify or register
the Shares for sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial
securities laws of those jurisdictions designated by the Agent, shall comply with such laws and shall continue such qualifications,
registrations and exemptions in effect so long as required for the distribution of the Shares. The Company shall not be required
to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction
where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise
the Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for
offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event
of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its reasonable best
efforts to obtain the withdrawal thereof as soon as practicable.


 






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(j)                
Earnings Statement. As soon as practicable, the Company will make generally available to its security holders and
to the Agent an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.


 


(k)              
Listing; Reservation of Shares. (a) The Company will use its reasonable best efforts to maintain the listing of the
Shares on the Principal Market; and (b) the Company will reserve and keep available at all times, free of preemptive rights, Shares
for the purpose of enabling the Company to satisfy its obligations under this Agreement.


 


(l)                
Transfer Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.


 


(m)            
Due Diligence. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due diligence
review conducted by the Agent in connection with the transactions contemplated hereby, including, without limitation, providing
information and making available documents and senior corporate officers, during normal business hours and at the Company’s
principal offices, as the Agent may reasonably request from time to time.


 


(n)              
Representations and Warranties. The Company acknowledges that each delivery of an Issuance Notice and each delivery
of Shares on a Settlement Date shall be deemed to be (i) an affirmation to the Agent that the representations and warranties of
the Company contained in or made pursuant to this Agreement are true and correct as of the date of such Issuance Notice or of such
Settlement Date, as the case may be, as though made at and as of each such date, except as may be disclosed in the Prospectus (including
any documents incorporated by reference therein and any supplements thereto); and (ii) an undertaking that the Company will
advise the Agent if any of such representations and warranties will not be true and correct as of the Settlement Date for the Shares
relating to such Issuance Notice, as though made at and as of each such date (except that such representations and warranties shall
be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).


 


(o)              
Deliverables at Triggering Event Dates; Certificates. The Company agrees that on or prior to the date of the first
Issuance Notice and, during the term of this Agreement after the date of the first Issuance Notice, upon:


 


(A)       the
filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)),
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 Prospectus;


 






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(B)       the
filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A or Form
10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K or quarterly
report on Form 10-Q), in each case, of the Company; or


 


(C)       the
filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than
information “furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of
Form 8-K relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial
Accounting Standards No. 144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion;


 


(any
such event, a “Triggering Event Date”), the Company shall furnish the Agent (but in the case of clause (C) above
only if the Agent reasonably determines that the information contained in such current report on Form 8-K of the Company is material)
with a certificate as of the Triggering Event Date, in the form and substance satisfactory to the Agent and its counsel, substantially
similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented, (A) confirming that the representations and warranties of the Company contained
in this Agreement are true and correct, (B) confirming that the Company has performed all of its obligations hereunder to be performed
on or prior to the date of such certificate and as to the matters set forth in ‎Section 5(a)(iii) hereof, and
(C) containing any other certification that the Agent shall reasonably request. The requirement to provide a certificate under
this Section 4(o) shall be waived for any Triggering Event Date occurring at a time when no Issuance Notice is pending or
a suspension is in effect, which waiver shall continue until the earlier to occur of the date the Company delivers instructions
for the sale of Shares hereunder (which for such calendar quarter shall be considered a Triggering Event Date) and the next occurring
Triggering Event Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Triggering
Event Date when a suspension was in effect and did not provide the Agent with a certificate under this Section 4(o), then
before the Company delivers the instructions for the sale of Shares or the Agent sells any Shares pursuant to such instructions,
the Company shall provide the Agent with a certificate in conformity with this Section 4(o) dated as of the date that the
instructions for the sale of Shares are issued.


 


(p)              
Legal Opinions. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date
with respect to which the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is
applicable and excluding the date of this Agreement, a negative assurances letter and the written legal opinion of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company, a negative assurances letter of Latham & Watkins LLP, counsel
to the Agent, and the written legal opinion of each of Sterne, Kessler, Goldstein & Fox P.L.L.C. and McCarter & English,
LLP, intellectual property counsel to the Company, each dated the date of delivery, shall be furnished to the Agent, each in form
and substance reasonably satisfactory to the Agent and its counsel, substantially similar to the form previously provided to the
Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, that the Company shall be required to furnish no more than one of each such opinion and negative assurance letter
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. hereunder in connection with the filing of each of its annual reports on
Form 10-K or Form 10-K/A and quarterly reports on Form 10-Q or Form 10-Q/A. In lieu of such opinions for subsequent periodic filings,
in the discretion of the Agent, the Company may furnish a reliance letter from such counsel to the Agent, permitting the Agent
to rely on a previously delivered opinion letter, modified as appropriate for any passage of time or Triggering Event Date (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 such Triggering Event Date).


 






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(q)              
Comfort Letter. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date
with respect to which the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is
applicable and excluding the date of this Agreement, the Company shall cause Ernst & Young LLP, the independent registered
public accounting firm who has audited the financial statements included or incorporated by reference in the Registration Statement,
to furnish the Agent a comfort letter, dated the date of delivery, in form and substance reasonably satisfactory to the Agent and
its counsel, substantially similar to the form previously provided to the Agent and its counsel; provided, however, that any such
comfort letter will only be required on the Triggering Event Date specified to the extent that it contains financial statements
filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into a Prospectus.
If requested by the Agent, the Company shall also 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 amended financial information of the Company, including the restatement of the Company’s financial statements. The
Company shall be required to furnish no more than one comfort letter hereunder per annual report on Form 10-K or Form 10-K/A and
quarterly report on Form 10-Q or Form 10-Q/A filed by the Company.


 


(r) Secretary’s
Certificate. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect
to which the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and
excluding the date of this Agreement, the Company shall furnish the Agent a certificate executed by the Secretary of the Company,
signing in such capacity, dated the date of delivery (i) certifying that attached thereto are true and complete copies of the
resolutions duly adopted by the Board of Directors of the Company authorizing the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby (including, without limitation, the issuance of the Shares pursuant to
this Agreement), which authorization shall be in full force and effect on and as of the date of such certificate, (ii) certifying
and attesting to the office, incumbency, due authority and specimen signatures of each Person who executed this
Agreement for or on behalf of the Company, and (iii) containing any other certification that the Agent shall reasonably
request.


 


(s)               
Agent’s Own Account; Clients’ Account. The Company consents to the Agent trading, in compliance with
applicable law, in the Common Shares for the Agent’s own account and for the account of its clients at the same time as sales
of the Shares occur pursuant to this Agreement.


 






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(t)                
Investment Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from its
sale of the Shares in such a manner as would require the Company or any of its subsidiaries to register as an investment company
under the Investment Company Act.


 


(u)              
Market Activities. The Company will not take, directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of the Shares or any other reference security, whether
to facilitate the sale or resale of the Shares or otherwise, and the Company will, and shall cause each of its Affiliates to, comply
with all applicable provisions of Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”)
do not apply with respect to the Shares or any other reference security pursuant to any exception set forth in Section (d) of Rule
102, then promptly upon notice from the Agent (or, if later, at the time stated in the notice), the Company will, and shall cause
each of its Affiliates to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102
(as interpreted by the Commission) did apply. The Company shall promptly notify the Agent if it no longer meets the requirements
set forth in Section (d) of Rule 102.


 


(v)              
Notice of Other Sale. Without the written consent of the Agent, the Company will not, directly or indirectly, (i)
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible
into or exchangeable for Common Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares,
during the period beginning on the third Trading Day immediately prior to the date on which any Issuance Notice is delivered to
the Agent hereunder and ending on the third Trading Day immediately following the Settlement Date with respect to Shares sold pursuant
to such Issuance Notice; (ii) effect a reverse stock split, recapitalization, share consolidation, reclassification or similar
transaction affecting the outstanding Common Shares; or (iii) enter into 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 Shares (other than
the Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Shares, warrants or any
rights to purchase or acquire, Common Shares prior to the termination of this Agreement; provided, however, that such restrictions
will not be required in connection with the Company’s (i) issuance or sale of Common Shares, options to purchase Common Shares,
Common Share-based awards, including restricted Common Shares, deferred Common Share units, restricted Common Share units, or Common
Shares issuable upon the exercise of options or other equity awards, including restricted Common Shares, deferred Common Share
units, restricted Common Share units, pursuant to any employee or director share option, incentive or benefit plan, share purchase
or ownership plan, long-term incentive plan, dividend reinvestment plan, inducement award under Nasdaq rules or other compensation
plan of the Company or its subsidiaries, as in effect on the date of this Agreement, (ii) issuance or sale of Common Shares issuable
upon exchange, conversion or redemption of securities or the exercise or vesting of warrants, options or other equity awards outstanding
at the date of this Agreement, (iii) issuance or sale of Common Shares or securities convertible into or exchangeable for Common
Shares as consideration for mergers, acquisitions or other business combinations, joint ventures, collaborations, licensing arrangements,
strategic alliances, or manufacturing, distribution, marketing, OEM, supply, sponsored research, technology transfer or development,
or third party service arrangements occurring after the date of this Agreement which are not used solely for capital raising purposes;
provided, however, that the aggregate number of Common Shares issued, or issuable pursuant to the conversion or exchange of securities
convertible into or exchangeable for Common Shares, under this subsection (iii) does not exceed 10% of the aggregate number of
Common Shares outstanding immediately prior to giving effect to such issuance or sale, and (iv) modification of any outstanding
options, warrants of any rights to purchase or acquire Common Shares.


 






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Section
5. CONDITIONS TO DELIVERY OF ISSUANCE NOTICES AND TO SETTLEMENT


 


(a)              
Conditions Precedent to the Right of the Company to Deliver an Issuance Notice and the Obligation of the Agent to Sell
Shares. The right of the Company to deliver an Issuance Notice hereunder is subject to the satisfaction, on the date of delivery
of such Issuance Notice, and the obligation of the Agent to use its commercially reasonable efforts to place Shares during the
applicable period set forth in the Issuance Notice is subject to the satisfaction, on each Trading Day during the applicable period
set forth in the Issuance Notice, of each of the following conditions:


 


		(i)	Accuracy of the Company’s Representations
and Warranties; Performance by the Company. The Company shall have delivered the certificate required to be delivered pursuant
to Section 4(o) on or before the date on which delivery of such certificate is required pursuant to Section 4(o).
The Company shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by the Company at or prior to such date, including, but not limited to, the covenants
contained in ‎Section 4(p), Section 4(q) and Section 4(r).



 


		(ii)	No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated hereby that prohibits or directly and materially adversely
affects any of the transactions contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect
of prohibiting or materially adversely affecting any of the transactions contemplated by this Agreement.



 


		(iii)	Material Adverse Changes. Except as disclosed in the Prospectus and the Time of Sale Information,
(a) in the judgment of the Agent there shall not have occurred any Material Adverse Change; and (b) there shall not have occurred
any downgrading, nor shall any public notice have been given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any
of its subsidiaries by any “nationally recognized statistical rating organization” as such term is defined for purposes
of Section 3(a)(62) of the Exchange Act.



 






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		(iv)	No Suspension of Trading in or Delisting of Common Shares; Other Events. The trading of
the Common Shares (including without limitation the Shares) shall not have been suspended by the Commission, the Principal Market
or FINRA and the Common Shares (including without limitation the Shares) shall have been approved for listing or quotation on and
shall not have been delisted from the Nasdaq Stock Market, the New York Stock Exchange or any of their constituent markets. There
shall not have occurred (and be continuing in the case of occurrences under clauses (i) and (ii) below) any of the following:
(i) trading or quotation in any of the Company’s securities shall have been suspended or limited by the Commission or
by the Principal Market or trading in securities generally on the Principal Market shall have been suspended or limited, or minimum
or maximum prices shall have been generally established on any of such stock exchanges by the Commission or FINRA; (ii) a
general banking moratorium shall have been declared by any of federal or New York, authorities; or (iii) there shall have
occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United
States or international financial markets, or any substantial change or development involving a prospective substantial change
in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material
and adverse and makes it impracticable to market the Shares in the manner and on the terms described in the Prospectus or to enforce
contracts for the sale of securities.



 


(b)              
Documents Required to be Delivered on each Issuance Notice Date. The Agent’s obligation to use its commercially
reasonable efforts to place Shares hereunder shall additionally be conditioned upon the delivery to the Agent on or before the
Issuance Notice Date of a certificate in form and substance reasonably satisfactory to the Agent, executed by the Chief Executive
Officer, President or Chief Financial Officer of the Company, to the effect
that all conditions to the delivery of such Issuance Notice shall have been satisfied as at the date of such certificate as required
to be delivered pursuant to Section 4(o) (which certificate shall not be required if the foregoing representations shall
be set forth in the Issuance Notice).


 


(c)              
No Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement,
the Prospectus or the Time of Sale Information, 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.


 


Section
6. INDEMNIFICATION AND CONTRIBUTION


 


(a)              
Indemnification of the Agent. The Company agrees to indemnify and hold harmless the Agent, its officers and employees,
and each person, if any, who controls the Agent within the meaning of the Securities Act or the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which the Agent or such officer, employee or controlling person may become
subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or the laws or regulations
of foreign jurisdictions where Shares have been offered or sold or at common law or otherwise (including in settlement of any litigation),
insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or
is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement,
or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities
Act, 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 (ii) any untrue statement or alleged untrue statement of a material fact contained in any Free
Writing Prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities
Act 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,
and to reimburse the Agent and each such officer, employee and controlling person for any and all expenses (including the reasonable
and documented fees and disbursements of counsel chosen by the Agent) as such expenses are reasonably incurred and documented by
the Agent or such officer, employee or controlling person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall
not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon
any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Agent expressly for use in the Registration Statement, any such Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished
by the Agent to the Company consists of the information set forth in the first sentence of the ninth paragraph under the caption
 “Plan of Distribution” in the Prospectus (the “Agent Information”). The indemnity agreement set
forth in this ‎Section 6(a) shall be in addition to any liabilities that the Company may otherwise have.


 






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(b)              
Indemnification of the Company, its Directors and Officers. The Agent agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred,
to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have
been offered or sold or at common law or otherwise (including in settlement of any litigation), that arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, 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 (ii) any untrue statement or alleged untrue statement of a material fact contained in any Free Writing Prospectus
that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act 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; but, for each of (i)
and (ii) above, only to the extent arising out of or based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Agent expressly
for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto),
it being understood and agreed that the only such information furnished by the Agent to the Company consists of the Agent Information,
and to reimburse the Company and each such director, officer and controlling person for any and all expenses (including the reasonable
and documented fees and disbursements of one counsel chosen by the Company) as such expenses are reasonably incurred and documented
by the Company or such officer, director or controlling person in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or action. The indemnity agreement set forth in this Section 6(b)
shall be in addition to any liabilities that the Agent may otherwise have.


 






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(c)              
Notifications and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this ‎Section
6 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party under this ‎Section 6, notify the indemnifying party in writing of the commencement thereof, but
the omission to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party
for contribution or otherwise than under the indemnity agreement contained in this ‎Section 6 or to the extent it is
not prejudiced as a proximate result of such failure. In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate
in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict
may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action
or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election to so
assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this ‎Section 6 for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance
with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the
fees and expenses of more than one separate counsel (together with local counsel), representing the indemnified parties who are
parties to such action), which counsel (together with any local counsel) for the indemnified parties shall be selected by the indemnified
party (in the case of counsel for the indemnified parties referred to in ‎Section 6(a) and Section 6(b) above),
(ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized in writing
the employment of counsel for the indemnified party at the expense of the indemnifying party, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred.


 






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(d)              
Settlements. The indemnifying party under this ‎Section 6 shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by ‎Section 6(c)
hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid
request; and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or proceeding.


 


(e)              
Contribution. If the indemnification provided for in this ‎Section 6 is for any reason held to be unavailable
to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Agent, on the other hand,
from the offering of the Shares pursuant to this Agreement; or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the one hand, and the Agent, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Agent, on the other
hand, in connection with the offering of the Shares pursuant to this Agreement shall be deemed to be in the same respective proportions
as the total gross proceeds from the offering of the Shares (before deducting expenses) received by the Company bear to the total
commissions received by the Agent. The relative fault of the Company, on the one hand, and the Agent, on the other hand, shall
be determined by reference to, among other things, whether any such 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, on the one hand, or the Agent, on
the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.


 


The
amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in ‎Section 6(c), any legal or other fees or expenses
reasonably incurred and documented by such party in connection with investigating or defending any action or claim. The provisions
set forth in ‎Section 6(c) with respect to notice of commencement of any action shall apply if a claim for contribution
is to be made under this ‎Section 6(c); provided, however, that no additional notice shall be required
with respect to any action for which notice has been given under ‎Section 6(c) for purposes of indemnification.


 






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The
Company and the Agent agree that it would not be just and equitable if contribution pursuant to this ‎Section 6(e)
were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to in this ‎Section 6(e).


 


Notwithstanding
the provisions of this ‎Section 6(e), the Agent shall not be required to contribute any amount in excess of the
Selling Commission received by the Agent in connection with the offering contemplated hereby. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this ‎Section 6(d), each officer and employee of the Agent
and each person, if any, who controls the Agent within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Agent, and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall
have the same rights to contribution as the Company.


 


Section
7. TERMINATION & SURVIVAL


 


(a)              
Term. Subject to the provisions of this ‎Section 7, the term of this Agreement shall continue from the
date of this Agreement until the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant
to this ‎Section 7.


 


(b)              
Termination; Survival Following Termination.


 


		(i)	Either party may terminate this Agreement
prior to the end of the Agency Period, by giving written notice as required by this Agreement, upon ten (10) Trading Days’
notice to the other party; provided that, (A) if the Company terminates this Agreement after the Agent confirms to the Company
any sale of Shares, the Company shall remain obligated to comply with ‎Section 3(b)(v) with respect
to such Shares and (B) ‎Section 2, ‎Section 6, ‎Section 7 and ‎Section 8 shall survive
termination of this Agreement. If termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall
nevertheless settle in accordance with the terms of this Agreement.



 


(ii)
In addition to the survival provision of ‎Section 7(b)(i), the respective indemnities, agreements, representations,
warranties and other statements of the Company, of its officers and of the Agent set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent or the Company or any of
its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary
notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement.


 






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Section
8. MISCELLANEOUS


 


(a)              
Press Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions
contemplated hereby as soon as practicable following the date of this Agreement, and may file with the Commission a Current Report
on Form 8-K, with this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated
hereby, and the Company shall consult with the Agent prior to making such disclosures, and the parties hereto shall use all commercially
reasonable efforts, acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties
hereto. No party hereto shall issue thereafter any press release or like public statement (including, without limitation, any disclosure
required in reports filed with the Commission pursuant to the Exchange Act) related to this Agreement or any of the transactions
contemplated hereby without the prior written approval of the other party hereto, except as may be necessary or appropriate in
the reasonable opinion of the party seeking to make disclosure to comply with the requirements of applicable law or stock exchange
rules. If any such press release or like public statement is so required, the party making such disclosure shall consult with the
other party prior to making such disclosure, and the parties shall use all commercially reasonable efforts, acting in good faith,
to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.


 


(b)              
No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the transactions contemplated
by this Agreement, including the determination of any fees, are arm’s-length commercial transactions between the Company
and the Agent, (ii) when acting as a principal under this Agreement, the Agent is and has been acting solely as a principal and
is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (iii) the Agent has
not assumed nor will assume an advisory or fiduciary responsibility in favor of the Company with respect to the transactions contemplated
hereby or the process leading thereto (irrespective of whether the Agent has advised or is currently advising the Company on other
matters) and the Agent does not have any obligation to the Company with respect to the transactions contemplated hereby except
the obligations expressly set forth in this Agreement, (iv) the Agent and its respective Affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of the Company, and (v) the Agent has not provided any legal, accounting,
regulatory or tax advice with respect to the transactions contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.


 


(c)              
Research Analyst Independence. The Company acknowledges that the Agent’s research analysts and research departments
are required to and should be independent from their respective investment banking divisions and are subject to certain regulations
and internal policies, and as such the Agent’s research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company or the offering that differ from the views of their respective investment
banking divisions. The Company understands that the Agent is a full service securities firm and as such from time to time, subject
to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.


 






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(d)              
Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed
to the parties hereto as follows:


 


If
to the Agent:




Jefferies LLC

520 Madison Avenue

New York, NY 10022

Facsimile: (646) 619-4437

Attention: General Counsel


 


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




Latham & Watkins LLP


12670 High Bluff Drive


San Diego, CA 92130


Facsimile: (858) 523-5450


Attention: Michael Sullivan.


 


If to the Company:






ImmunoGen, Inc.


830 Winter Street


Waltham, MA 02451


Facsimile: (781) 207-0265


Attention: Joseph Kenny


 


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




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

One Financial Center

Boston, MA 02111

Facsimile: (617) 542-2241

Attention: Daniel T. Kajunski.


 


Any
party hereto may change the address for receipt of communications by giving written notice to the others in accordance with this
‎Section 8(d).


 


(e)              
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit
of the employees, officers and directors and controlling persons referred to in ‎Section 6, and in each case their respective
successors, and no other person will have any right or obligation hereunder. The term “successors” shall not include
any purchaser of the Shares as such from the Agent merely by reason of such purchase.


 


(f)               
Partial Unenforceability. The invalidity or unenforceability of any Article, Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any
Article, Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall
be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.


 






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(g)              
Governing Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of
the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York
in each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”),
and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement
of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding.
Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service
of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive
any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court
has been brought in an inconvenient forum.


 


(h)              
General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes
all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject
matter hereof. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument, and may be delivered by facsimile transmission or
by electronic delivery of a portable document format (PDF) file. This Agreement may not be amended or modified unless in writing
by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party
whom the condition is meant to benefit. The Article and Section headings herein are for the convenience of the parties only and
shall not affect the construction or interpretation of this Agreement.


 


[Signature Page Immediately Follows]


 






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If the foregoing is
in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon
this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms


 


 


	 	Very truly
    yours,
	 	 
	 	IMMUNOGEN, INC.
	 	 
	 	By:	/s/  Susan Altschuller
	 	 	Name: Susan Altschuller 




	 	 	Title:Chief Financial Officer




 


The foregoing Agreement is hereby confirmed
and accepted by the Agent in New York, New York as of the date first above written.


 


	JEFFERIES
    LLC	 
	 	 
	By:	/s/  Dustin Tyner	 
	 	Name: Dustin Tyner	 
	 	Title:Managing Director	 



 






     


     


    

 


EXHIBIT A


 


ISSUANCE NOTICE


 


[Date]


 


Jefferies LLC


520 Madison Avenue


New York, New York 10022


 


Attn: [__________]


 


Reference is made to the Open Market Sale
Agreement between __________ (the “Company”) and Jefferies LLC (the “Agent”) dated as of
September 25, 2020. The Company confirms that all conditions to the delivery of this Issuance Notice are satisfied as of the date
hereof.


 


Date
of Delivery of Issuance Notice (determined pursuant to ‎Section 3(b)(i)): 

_______________________


 


Issuance Amount (equal to the total Sales Price for such Shares):


 


	 	$	 	 
	 	 	 
	Number of days in selling
    period:	 	 
	 	 	 
	First date of selling period:	 	 
	 	 	 
	Last date of selling period:	 	 
	 	 	 
	Settlement Date(s) if other than standard T+2 settlement:	 
	 	 	 




 


 


 


Floor Price Limitation (in no event less
than $1.00 without the prior written consent of the Agent, which consent may be withheld in the Agent’s sole discretion):
$ ____ per share


 


	Comments:   	 




 


 


	 	 
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:




 






    A-1


     


    

 


Schedule A


 


Notice Parties


 


The Company


 


Mark Enyedy (Mark.Enyedy@immunogen.com)


Susan Altschuller (Susan.Altschuller@immunogen.com)


Joseph Kenny (Joseph.Kenny@immunogen.com)


 


The Agent


 


Dustin Tyner (dtyner@jefferies.com)


Donald Lynaugh (dlynaugh@jefferies.com)


Michael Magarro (mmagarro@jefferies.com)


Jack Fabbri (fabbri@jefferies.com)