Exhibit 10.1


 


AT THE MARKET OFFERING AGREEMENT


 


	 	October 22, 2020



 


H.C. Wainwright & Co.,
LLC


430 Park Avenue


New York, NY 10022


 


Ladies
and Gentlemen:


 





Enlivex Therapeutics
Ltd., a company organized under the laws of the State of Israel (the “Company”), confirms its agreement (this
“Agreement”) with H.C. Wainwright & Co., LLC (the “Manager”) as follows:


 


1. Definitions.
The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.


 


“Accountants” shall
have the meaning ascribed to such term in Section 4(m).


 


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


 


“Action”
shall have the meaning ascribed to such term in Section 3(q).


 


“Affiliate”
shall have the meaning ascribed to such term in Section 3(p).


 


“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant
Terms Agreement.


 


“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Execution Time.


 


“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).


 


“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).


 


“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to
be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee”  or any other similar orders or restrictions or the closure of any physical branch locations at the direction
of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks
in The City of New York generally are open for use by customers on such day.


 






     


     


    




 


“Commission”
shall mean the United States Securities and Exchange Commission.


 


“Company
Counsel” means Company Israeli Counsel and Company U.S. Counsel.


 


“Company
Israeli Counsel” means Yigal Arnon & Co., with offices located at 1 Azrieli Center, Tel Aviv, 6702101, Israel.


 


“Company
U.S. Counsel” means Greenberg Traurig, P.A., with offices located at 333 S.E. 2nd Avenue, Suite 4400, Miami, Florida
33131.


 


“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).


 


“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.


 


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


 


“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.


 


“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.


 


“GAAP”
shall have the meaning ascribed to such term in Section 3(n).


 


“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that
are incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with
the Commission after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.


 


“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).


 


“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.


 


“Liens”
shall have the meaning ascribed to such term in Section 3(a).


 


“Losses”
shall have the meaning ascribed to such term in Section 7(d).


 


“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).


 






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“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).


 


“Maximum
Amount” shall have the meaning ascribed to such term in Section 2.


 


“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).


 


“Ordinary
Share(s)” means the ordinary shares of the Company, par value 0.40 NIS per share, and any other class of securities into
which such securities may hereafter be reclassified or changed.


 


“Ordinary
Share Equivalents” shall mean any securities of the Company or the Subsidiaries which would entitle the holder thereof
to acquire at any time Ordinary Shares including, without limitation, any debt, preferred share, right, option, warrant or other
instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive, Ordinary Shares.


 


“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).


 


“Person”
shall have the meaning ascribed to such term in Section 3(e).


 


“Placement”
shall have the meaning ascribed to such term in Section 2(c).


 


“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).


 


“Prospectus”
shall mean the Base Prospectus, as supplemented by the most recently filed Prospectus Supplement (if any).


 


“Prospectus
Supplement” shall mean each prospectus supplement relating to the Shares offered in respect of this Agreement and prepared
and filed pursuant to Rule 424(b) from time to time.


 


“Registration
Statement” shall mean the effective registration statement on Form F-3, with Commission File No. 333-232009, including
exhibits and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant
to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date
and, in the event any post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.


 


“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).


 






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“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).


 


“Rule 158”,
“Rule 163”, “Rule 164”, “Rule 172”, “Rule 173”,
“Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”
and “Rule 433” refer to such rules under the Act.


 


“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).


 


“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).


 


“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).


 


“Shares”
shall have the meaning ascribed to such term in Section 2.


 


“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).


 


“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).


 


“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).


 


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


 


“Trading
Market” means any of the following markets or exchanges on which the Ordinary Shares are listed or quoted for trading
on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
or the New York Stock Exchange (or any successors to any of the foregoing).


 


2. Sale
and Delivery of Shares. The Company may issue and sell through or to the Manager, as sales agent and/or principal, up to $25,000,000
of Ordinary Shares (the “Shares”) from time to time during the term of this Agreement and on the terms set forth
herein; provided, however that in no event shall the Company issue or sell through the Manager such number of Shares
that exceeds the lesser of (a) the number or dollar amount of the Shares registered on the Registration Statement pursuant to which
the offering is being made, (b) the maximum number of Ordinary Shares authorized for issuance representing the maximum number of
authorized but unissued Ordinary Shares (less the number of Ordinary Shares issuable upon exercise, conversion or exchange of any
outstanding securities of the Company or otherwise reserved from the Company’s authorized share capital), and (c) the maximum
number of Ordinary Shares that may be offered and sold in accordance with the eligibility and transaction requirements for use
of Form F-3, including, if applicable, General Instruction I.B.5 of Registration Statement on Form F-3 (the lesser of (a), (b)
and (c), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto
agree that compliance with the limitations set forth in this Section 2 on the number and aggregate sales price of Shares issued
and sold under this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation in
connection with such compliance.


 






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(a) Appointment
of Manager as Selling Agent; Terms Agreement. The Company hereby appoints the Manager as exclusive agent of the Company for
the purpose of selling Shares pursuant to this Agreement, and the Manager agrees to use its commercially reasonable efforts to
sell the Shares on the terms and subject to the conditions stated herein. The Company agrees that, whenever it determines to sell
the Shares directly to the Manager as principal, it will enter into a separate agreement (each, a “Terms Agreement”)
in substantially the form of Annex I hereto, relating to such sale in accordance with Section 2 of this Agreement.


 


(b) Agent
Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company
will issue and agrees to sell Shares from time to time through the Manager, acting as sales agent, and the Manager agrees to use
its commercially reasonable efforts to sell such Shares, as sales agent for the Company, on the following terms:


 


(i) The
Shares are to be sold as shall be agreed to by the Company and the Manager on any day that (A) is a Trading Day, (B) the Company
has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales (including such electronic mail
confirmation, a “Sales Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement.
The Company will designate in the applicable Sales Notice the maximum amount of the Shares to be sold by the Manager daily (subject
to the limitations set forth in Section 2(d)) and the minimum price per Share at which such Shares may be sold. Subject to the
terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell on a particular day all of the Shares
designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 2(b) shall be the
market price for the Ordinary Shares sold by the Manager under this Section 2(b) on the Trading Market at the time of sale of such
Shares.


 


(ii) The
Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B)
the Manager will incur no liability or obligation to the Company or any other Person if it does not sell the Shares for any reason
other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no
obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager
and the Company pursuant to a Terms Agreement.


 






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(iii) The
Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable
(or other) efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s
Board of Directors (the “Board”), or a duly authorized committee thereof, or such duly authorized officers of
the Company, and notified to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone
(confirmed promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however,
that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares
sold hereunder prior to the giving of such notice.


 


(iv) The
Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule
415 under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market
for the Ordinary Shares or to or through a market maker or in any other method permitted by law, which may include block trades.
The Manager may also sell Shares in privately negotiated transactions provided that the Manager receives the Company’s prior
written approval for any sales in privately negotiated transactions and if so provided in the “Plan of Distribution”
section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement.


 


(v) The
compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3.0% of the gross sales
price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall
not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price
agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker
Fee and deduction of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization
in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).


 


(vi) The
Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of
trading on the Trading Market each day on which the Shares are sold under this Section 2(b) setting forth the number of the Shares
sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company
to the Manager with respect to such sales.


 






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(vii) Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date
on which such sales are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement
Date, the Company will, or will cause its transfer agent to electronically transfer the Shares being sold by crediting the Manager’s
or its designee’s account (provided that the Manager shall have given the Company written notice of such designee at least
one (1) Trading Day prior to the Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit
and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto, which
Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On or prior to each Settlement
Date, the Manager will deliver the related Net Proceeds in same day funds to an account designated by the Company. The Company
agrees that, if the Company or its transfer agent (if applicable) defaults in its obligation to deliver duly authorized Shares
on a Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7 hereto, the Company
will (i) hold the Manager harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and
documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company, and (ii) pay
to the Manager any commission, discount or other compensation to which the Manager would otherwise have been entitled absent such
default.


 


(viii) At
each Applicable Time, Settlement Date and Representation Date, the Company shall be deemed to have affirmed each representation
and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary
to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its
commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the
representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the
continuing satisfaction of the additional conditions specified in Section 6 of this Agreement.


 






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(ix) Except
as may be mutually agreed upon by the Company and the Manager, the Company shall not request the sale of any Shares that would
be sold, and the Manager shall not be obligated to use its commercially reasonable (or other) efforts to sell, (i) any time during
the period commencing on the third (3rd) Business Day prior to the date on which Company shall issue a press release containing,
or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”)
through and including the time that is 24 hours after the time that the Company files with the Commission a Form 6-K containing
interim financial information (other than information that is furnished and not filed) or an Annual Report on Form 20-F that includes
consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement,
or (ii) during any other period in which the Company is, or could be deemed to be, in possession of material non-public information.











 


(c) Term
Sales. If the Company wishes to sell the Shares pursuant to this Agreement but other than as set forth in Section 2(b) of this
Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole
discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into
a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the
Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the
terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement,
the terms of such Terms Agreement will control. A Terms Agreement may also specify certain provisions relating to the reoffering
of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed
to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager
pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters
acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred
to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement
shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant
to Section 6 of this Agreement and any other information or documents required by the Manager.


 






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











 


3. Representations
and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and on each such
time the following representations and warranties are repeated or deemed to be made pursuant to this Agreement, as set forth below,
except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.


 


(a) Subsidiaries.
All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company are set forth in the
most recent Annual Report on Form 20-F filed with the Commission. The Company owns, directly or indirectly, all of the capital
stock or other equity interests of each Subsidiary free and clear of any “Liens” (which for purposes of this
Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction),
and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities.


 


(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing, and, if applicable under the laws of the jurisdiction in which they are formed, in good standing under the laws of the
jurisdiction of its incorporation or organization (if the concept of good standing exists in such jurisdiction), with the requisite
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any Subsidiary is in violation nor default of any of the provisions of its certificate or articles of association, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is
in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or
enforceability of this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement,
the Base Prospectus, any Prospectus Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect
on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement (any of
(i), (ii) or (iii), a “Material Adverse Effect”) and no “Proceeding” (which for purposes
of this Agreement shall mean any action, claim, suit, investigation or proceeding (including, without limitation, an investigation
or partial proceeding, such as a deposition), whether commenced or, to the Company’s knowledge, threatened) has been instituted
in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


 






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(c) Authorization
and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement
by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action
on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s shareholders
in connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered
by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.








 


(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and
the consummation by the Company of the other transactions contemplated hereby do not and will not (i) conflict with or violate
any provision of the Company’s or any Subsidiary’s certificate or articles of association, bylaws or other organizational
or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would
become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary,
or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with
or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or
Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property
or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result
in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by
which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.


 






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(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity
of any kind, including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement,
other than (i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii)
the filing of a Report on Form 6-K with respect to this Agreement, (iv) application(s) to each applicable Trading Market for the
listing of the Shares to be offered and sold hereunder for trading thereon in the time and manner required thereby, (v) such filings
as are required to be made with the Tel Aviv Stock Exchange, (vi) approval of the transactions contemplated by the Agreement by
the Israeli Innovation Authority, and (vii) such filings as are required to be made under applicable state securities laws and
the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the laws of the
state of Israel (collectively, the “Required Approvals”).


 


(f) Issuance
of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and
validly issued, fully paid and nonassessable, free and clear of all Liens. The Company has reserved from its duly authorized capital
stock the maximum number of Ordinary Shares issuable pursuant to this Agreement. The Shares are being offered and sold pursuant
to the Registration Statement, and the issuance of the Shares has been registered by the Company under the Act. The “Plan
of Distribution” section within the Registration Statement permits the issuance and sale of the Shares as contemplated
by this Agreement. Upon receipt of the Shares, the purchasers of such Shares will have good and marketable title to such Shares
and the Shares will be freely tradable on the Trading Market.











 


(g) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any share capital since its most
recently filed Report on Form 6-K under the Exchange Act, other than pursuant to the exercise of employee equity options under
the Company’s equity plans, the issuance of Ordinary Shares to employees pursuant to the Company’s employee share purchase
plans and pursuant to the conversion and/or exercise of Ordinary Share Equivalents. No Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. Except as
set forth in the Registration Statement, the Base Prospectus, the Prospectus Supplement and the Prospectus, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire,
any Ordinary Shares or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may
become bound to issue additional Ordinary Shares or Ordinary Share Equivalents or share stock of any Subsidiary. The issuance and
sale of the Shares pursuant to this Agreement will not obligate the Company or any Subsidiary to issue Ordinary Shares or other
securities to any Person. There are no outstanding securities or instruments of the Company or any Subsidiary with any provision
that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by
the Company or any Subsidiary other than as a result of any share split, share dividend, recapitalization, exchange,
or similar event. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption
or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary
is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation
rights or “phantom share” plans or agreements or any similar plan or agreement. All of the outstanding Ordinary Shares
are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities
laws, and none of such outstanding Ordinary Shares was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. No further approval or authorization of any shareholder, the Board of Directors or others is required
for the issuance and sale of the Shares pursuant to this Agreement. There are no shareholders agreements, voting agreements or
other similar agreements with respect to the Company’s Ordinary Shares to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s shareholders.


 






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(h) Registration
Statement. The Company meets the requirements for use of Form F-3 under the Act, including but not limited to I.B.1 of Form
F-3, and has prepared and filed with the Commission the Registration Statement, including a related Base Prospectus, for registration
under the Act of the offering and sale of the Shares. Such Registration Statement is effective and available for the offer and
sale of the Shares as of the date hereof. As filed, the Base Prospectus contains, in all material respects, all information required
by the Act and the rules thereunder, and, except to the extent the Manager shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to the Manager prior to the Execution Time or prior to any such time this representation
is repeated or deemed to be made. The Registration Statement, at the Execution Time, each such time this representation is repeated
or deemed to be made, and at all times during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale of the Shares, meets the requirements
set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three (3)
years before the Execution Time. The Company meets the requirements for use of Form F-3 under the Securities Act specified in Financial
Industry Regulatory Authority Rule 5110(h)(1)(C) and is an “experienced issuer” as such term is defined in FINRA Rule
5110(j)(6).











 


(i) Accuracy
of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were
filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus,
when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act
and the rules thereunder, as applicable, and will not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.


 


(j) Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on
each such time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account
of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.


 


(k) Free
Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus does
not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified;
and each Issuer Free Writing Prospectus does not contain any 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, not misleading.
The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus
that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with
the requirements of the Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material
respects with the requirements of the Act and the rules thereunder. The Company will not, without the prior consent of the Manager,
prepare, use or refer to, any Issuer Free Writing Prospectuses.


 


(l) Proceedings
Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act
in connection with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends
to issue a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or permanently, or, to the knowledge of the Company, intends or
has threatened in writing to do so.


 






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(m) SEC
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one (1) year preceding the date
hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus
Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a
valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of
their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act,
as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect
at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified
in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries
as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments.


 


(n) Accountants.
The Company’s accountants are Yarel + Partners. To the knowledge of the Company, such accountants, which the Company expects
will express their opinion with respect to the financial statements to be included in the Company’s next Annual Report on
Form 20-F, are a registered public accounting firm as required by the Act.


 


(o) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has
been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP or disclosed in the SEC Reports, (iii) the Company has not altered its method
of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its shareholders
or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not
issued any equity securities to any officer, director or “Affiliate” (defined as any Person that, directly or
indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms
are used in and construed under Rule 144 under the Act), except pursuant to existing Company equity plans. The Company does not
have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Shares
contemplated by this Agreement or as set forth in the SEC Reports, no event, liability, fact, circumstance, occurrence or development
has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective
businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company
under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at
least one (1) Trading Day prior to the date that this representation is made.


 






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(p) Litigation.
Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local
or foreign) (collectively, an “Action”). None of the Actions set forth in the SEC Reports, (i) adversely affects
or challenges the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal
or state securities laws or a claim of breach of fiduciary duty which could, if there were an unfavorable decision, have or would
be reasonably expected to result in a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is
not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer
of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or the Act.


 


(q) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of
the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or
any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure
or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant
in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of
its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance
with all applicable U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices,
terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.


 






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(r) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any
court, arbitrator or other governmental authority relating to the Company or any Subsidiary or (iii) is or has been in violation
of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal,
state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and
employment and labor matters, except in each case of (i), (ii) and (iii) as could not have or reasonably be expected to result
in a Material Adverse Effect.


 


(s)Environmental
Laws.The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to
pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or
subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses,
notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental
Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or
approval where in each of clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect.


 


(t) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation
or modification of any Material Permit.


 


(u) Title
to Assets. The Company and the Subsidiaries have good and valid title in fee simple to or have valid and marketable rights
to lease or otherwise use all real property that is described on the SEC Reports and good and valid title in or have valid and
marketable rights to lease or otherwise use all personal property owned by them that is material to the business of the Company
and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries
and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance
with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company
and the Subsidiaries are in compliance except where such failure to so comply could be reasonably expected to have a Material Adverse
Effect.


 






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(v) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports
and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2)
years from the date of this Agreement, except as could not be reasonably expected to have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports,
a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights
of any Person. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure
to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(w) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary for companies of similar size as the Company in the businesses in which the Company
and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company
nor any Subsidiary has 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 from similar insurers as may be necessary to continue its business without a significant
increase in cost.


 


(x) Affiliate
Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and,
to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or
from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee, shareholders, member or partner, in each case in excess of $120,000
other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf
of the Company and (iii) other employee benefits, including share option agreements under any equity plan of the Company.


 






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(y) Sarbanes
Oxley Compliance. The Company and the Subsidiaries are in compliance in all material respects with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed
such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports 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. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures
of the Company and the Subsidiaries as of the end of the period covered by the most recently filed Form 20-F under the Exchange
Act (such date, the “Evaluation Date”). The Company presented in its most recently filed Form 20-F under the
Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected,
or are reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.


 


(z) Certain
Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be payable
by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank
or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by this Agreement.


 


(aa)No
Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements,
in each case that are currently in effect, with any agent or any other representative in respect of at the market offerings of
the Shares.


 


(bb)Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares, will not
be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.


 


(cc)Listing
and Maintenance Requirements. The issuance and sale of the Shares as contemplated in this Agreement does not contravene the
rules and regulations of the Trading Market. The Ordinary Shares are registered pursuant to Section 12(b) or 12(g) of the
Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating
the registration of the Ordinary Shares under the Exchange Act nor has the Company received any notification that the Commission
is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof, received notice
from any Trading Market on which the Ordinary Shares have been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will
not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Ordinary Shares
are currently eligible for electronic transfer through DTC or another established clearing corporation and the Company is current
in payment of the fees to DTC (or such other established clearing corporation) in connection with such electronic transfer.


 






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(dd)Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s articles of association (or similar charter documents) or the
laws of its state of incorporation that is or could become applicable to the purchasers of the Shares in connection with the sales
described herein.


 


(ee)Solvency.
Based on the consolidated financial condition of the Company as of the Effective Date, (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in
respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).
The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation
under the bankruptcy or reorganization laws of any jurisdiction within one (1) year from the date hereof. The SEC Reports sets
forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the
Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any
liabilities for borrowed money or amounts owed by the Company or its Subsidiaries in excess of $100,000 (other than trade accounts
payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect
of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet
(or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions
in the ordinary course of business; and (z) the present value of any lease payments in excess of $100,000 due under leases required
to be capitalized in accordance with GAAP. Except for matters that would not, individually or in the aggregate, have or would reasonably
be expected to result in a Material Adverse Effect, neither the Company nor any Subsidiary is in default with respect to any Indebtedness.


 






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(ff)Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local
income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due
on such returns, reports and declarations, except for such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been established by the Company and (iii) has set aside on its books provision reasonably adequate for the
payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the
Company or of any Subsidiary know of no basis for any such claim.


 


(gg)Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent
or other Person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns
from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any Person
acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any
provision of FCPA.


 


(hh)Accountants.
The Company’s independent registered public accounting firm is as set forth in the SEC Reports. To the knowledge of the Company,
such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion
with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December
31, 2020.


 


(ii) Regulation
M Compliance.  The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of,
any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the sales
of the Shares hereunder.


 






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(jj)FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal
Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged,
labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the
failure to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company’s
knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge,
complaint, or investigation) against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries
has received any notice, warning letter or other communication from the FDA or any other governmental entity, which (i) contests
the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or packaging
of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests
the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating
to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries,
(iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent
decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws,
rules or regulations by the Company or any of its Subsidiaries, and which, either individually or in the aggregate, would have
a Material Adverse Effect. The properties, business and operations of the Company have been and are being conducted in all material
respects in accordance with all applicable laws, rules and regulations of the FDA.  The Company has not been informed by the
FDA that the FDA will prohibit the marketing, sale, license or use in the United States of any product proposed to be developed,
produced or marketed by the Company nor has the FDA expressed any concern as to approving or clearing for marketing any product
being developed or proposed to be developed by the Company, which would have a Material Adverse Effect.


 


(kk)Equity
Plans. Each share option granted by the Company under the Company’s equity plan was granted in accordance with the terms
of the Company’s equity plan. No share option granted under the Company’s equity plan has been backdated. The Company
has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, share options prior to,
or otherwise knowingly coordinate the grant of share options with, the release or other public announcement of material information
regarding the Company or its Subsidiaries or their financial results or prospects.


 






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(ll)Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer,
agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).


 


(mm)U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the
meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s
request.


 


(nn)Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act
of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%)
or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


 


(oo) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company or any Subsidiary, threatened.


 


(pp)FINRA
Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors or,
to the knowledge of the Company, any five percent (5%) or greater shareholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.


 






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4. Agreements.
The Company agrees with the Manager that:


 


(a) Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a prospectus
relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173
or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not
file any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless
the Company has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or
supplement to which the Manager reasonably objects; provided, however, that the Company will have no obligation to provide the
Manager any advance copy of a filing or to provide the Manager an opportunity to object to a filing if such filing does not name
the Manager and does not relate to the transactions contemplated herein. The Company has properly completed the Prospectus, in
a form approved by the Manager, and filed such Prospectus, as amended at the Execution Time, with the Commission pursuant to the
applicable paragraph of Rule 424(b) by the Execution Time and will cause any supplement to the Prospectus to be properly completed,
in a form approved by the Manager, and will file such supplement with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to the Manager of such timely
filing. The Company will promptly advise the Manager (i) when the Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether
physically or through compliance with Rule 172, 173 or any similar rule) is required under the Act in connection with the offering
or sale of the Shares, any amendment to the Registration Statement shall have been filed or become effective (other than any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to
the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its commercially
reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the
use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the
withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its commercially reasonable efforts to have such amendment or
new registration statement declared effective as soon as commercially practicable.


 


(b) Subsequent
Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as a result
of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances
then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Registration Statement
or Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus
to correct such statement or omission; and (iii) supply any amendment or supplement to the Manager in such quantities as the
Manager may reasonably request.


 






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(c) Notification
of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required (including in
circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the
Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement
or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection
with use or delivery of the Prospectus, the Company promptly will (i) notify the Manager of any such event (provided that such
notification to the Manager shall not be required if a Sales Notice is not pending at the time of such event, but such notification
shall be required prior to delivery by the Company of any subsequent Sales Notice), (ii) subject to Section 4(a), prepare and file
with the Commission an amendment or supplement or new registration statement which will correct such statement or omission or effect
such compliance, (iii) use its commercially reasonable efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as commercially practicable in order to avoid any disruption in use of the Prospectus and
(iv) supply any supplemented Prospectus to the Manager in such quantities as the Manager may reasonably request.


 


(d) Earnings
Statements. As soon as practicable, the Company will make generally available to its security holders and to the Manager an
earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange
Act shall be deemed to satisfy the requirements of this Section 4(d).


 


(e) Delivery
of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the Manager,
without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus
by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant
to Rule 172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement
thereto as the Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.


 






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(f) Qualification
of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions
of the United States of America as the Manager may designate and will maintain such qualifications in effect so long as required
for the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising
out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.


 


(g) Free
Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Manager,
and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent
of the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to
be filed by the Company with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented
to by the Manager or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and
433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and
record keeping.


 


(h) Subsequent
Equity Issuances. The Company shall not deliver any Sales Notice less than two (2) Business Days (or three (3) Business Days
if a sale of Shares hereunder has not yet settled) prior to the date on which the Company or any Subsidiary offers, sells, issues,
contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any Ordinary Shares or any Ordinary Share
Equivalents (other than the Shares), subject to Manager’s right to waive this obligation; provided that, without any such
waiver, (w) the Company may issue and sell Ordinary Shares pursuant to any equity option plan, share ownership plan or dividend
reinvestment plan of the Company in effect at the Execution Time, (x) the Company may issue Ordinary Shares issuable upon the conversion
or exercise of Ordinary Share Equivalents outstanding from time to time, and (y) the Company may issue Ordinary Shares or any Ordinary
Share Equivalents to employees, directors, officers, consultants and advisors as compensation for employment or services in the
ordinary course of business, whether or not under a plan outstanding at the Execution Time.


 


(i) Market
Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed
to or that would constitute or that would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the
Company to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.


 






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(j) Notification
of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time to time,
advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that
would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6 herein;
provided that such notification to the Manager shall not be required if a Sales Notice is not pending at the time of such notice
or knowledge of such information or fact, but such notification shall be required prior to delivery by the Company of any subsequent
Sales Notice.


 


(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement
of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than
30 Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than
by means of Incorporated Documents or a supplement unrelated to the offer and sale of Shares as contemplated herein, (ii) the Company
files its Annual Report on Form 20-F under the Exchange Act, (iii) the Company files a Report on Form 6-K containing either quarterly
or amended financial information (other than information that is furnished and not filed), if the Manager reasonably determines
that the information in such Report on Form 6-K is material, or (iv) the Shares are delivered to the Manager as principal at the
Time of Delivery pursuant to a Terms Agreement (such commencement or recommencement date and each such date referred to in (i),
(ii), (iii) and (iv) above, a “Representation Date”), unless waived by the Manager, the Company shall furnish
or cause to be furnished to the Manager forthwith a certificate dated and delivered within three (3) Business Days of the Representation
Date, in form reasonably satisfactory to the Manager to the effect that the statements contained in the certificate referred to
in Section 6 of this Agreement which were last furnished to the Manager are true and correct at the Representation Date, as though
made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred
to in said Section 6, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented
to the date of delivery of such certificate.


 


(l) Bring
Down Opinions; Negative Assurance. Within three (3) Business Days of each Representation Date, unless waived by the Manager,
the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager (i) a written opinion
of Company Israeli Counsel and (ii) a written opinion and negative assurance representation of Company U.S. Counsel, in each case
addressed to the Manager and dated and delivered as on such date, in form and substance reasonably satisfactory to the Manager.
The requirement to furnish or cause to be furnished a negative assurance representation letter under this Section 4(l) shall be
waived for any Representation Date occurring on a date on which no instruction to the Manager to sell Shares pursuant to this Agreement
has been delivered by the Company or is pending. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares
following any Representation Date when the Company relied on such waiver and did not provide the Manager a negative assurance representation
letter pursuant to this Section 4(l), then before the Company instructs the Manager to sell Shares pursuant to this Agreement,
the Company shall provide the Manager such negative assurance representation letter.


 






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(m) Auditor
Bring Down “Comfort” Letter. Within three (3) Business Days of each Representation Date, unless waived by the Manager,
the Company shall cause (1) the Company’s independent registered public accounting firm (the “Accountants”),
or other independent accountants satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial
Officer of the Company forthwith to furnish the Manager a certificate, in each case dated on such Representation Date, in form
satisfactory to the Manager, of the same tenor as the letters and certificate referred to in Section 6 of this Agreement but modified
to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate.
The requirement to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for
any Representation Date occurring on a date on which no instruction to the Manager to sell Shares pursuant to this Agreement has
been delivered by the Company or is pending. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares
following any Representation Date when the Company relied on such waiver and did not provide the Manager a “comfort”
letter pursuant to this Section 4(m), then before the Company instructs the Manager to sell Shares pursuant to this Agreement,
the Company shall provide the Manager such “comfort” letter.


 


(n) Due
Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading
Days), and within three (3) Business Days of Representation Date, the Company will conduct a due diligence session, in form and
substance, reasonably satisfactory to the Manager, which shall include representatives of management and Accountants. The Company
shall cooperate timely with any reasonable due diligence request from or review conducted by the Manager or its agents from time
to time in connection with the transactions contemplated by this Agreement, including, without limitation, providing information
and available documents and access to appropriate corporate officers and the Company’s agents during regular business hours,
and timely furnishing or causing to be furnished such certificates, letters and opinions from the Company, its officers and its
agents, as the Manager may reasonably request. The Company shall reimburse the Manager for Manager’s counsel’s time
in each such due diligence update session, up to a maximum of $2,500 per update.


 






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(o) Acknowledgment
of Trading. The Company consents to the Manager trading in the Ordinary Shares for the Manager’s own account and for
the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.


 


(p) Disclosure
of Shares Sold. The Company will disclose in its Annual Reports on Form 20-F and in its Reports on Form 6-K when disclosing
interim financial statements or results, as applicable, the number of Shares sold through the Manager under this Agreement, the
Net Proceeds to the Company and the compensation paid by the Company with respect to sales of Shares pursuant to this Agreement
during the relevant period; and, if required by any subsequent change in Commission policy or request, more frequently by means
of a Report on Form 6-K or a further Prospectus Supplement.


 


(q) Rescission
Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of the applicable
Settlement Date, the Company will offer to any Person who has agreed to purchase Shares from the Company as the result of an offer
to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.


 


(r) Bring
Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and each
execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager 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 acceptance
or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will
be true and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating
to such sale, as the case may be, as though made at and as of 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).


 


(s) Reservation
of Ordinary Shares. The Company shall ensure that there are at all times sufficient Ordinary Shares to provide for the issuance,
free of any preemptive rights, out of its authorized but unissued Ordinary Shares or Ordinary Shares held in treasury, of the maximum
aggregate number of Shares that may be sold pursuant to the terms of this Agreement. The Company will use its commercially reasonable
efforts to cause the Shares to be listed for trading on the Trading Market and to maintain such listing.


 


(t) Obligation
Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, the
Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required
by the Exchange Act and the regulations thereunder.


 






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(u) DTC
Facility. The Company shall cooperate with Manager and use its reasonable efforts to permit the Shares to be eligible for clearance
and settlement through the facilities of DTC.


 


(v) Use
of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.


 


(w) Additional
Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares as contemplated
by this Agreement, the Company shall file a new registration statement with respect to any Ordinary Shares necessary to complete
such sales of the Shares hereunder and shall cause such registration statement to become effective as promptly as practicable.
After the effectiveness of any such registration statement, all references to “Registration Statement” included
in this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference
therein, and all references to “Base Prospectus” included in this Agreement shall be deemed to include the final
form of prospectus, including all documents incorporated therein by reference, included in any such registration statement at the
time such registration statement became effective.


 


5. Payment
of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto),
the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing
(or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes
in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with
the offering of the Shares; (v) the registration of the Shares under the Exchange Act, if applicable, and the listing of the
Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer and sale under the securities
or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Manager relating
to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf of Company representatives
in connection with presentations to prospective purchasers of the Shares; (viii) the fees and expenses of the Company’s
accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) the filing fee under
FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to exceed $50,000 (excluding any periodic
due diligence fees provided for under Section 4(n)); and (xi) all other costs and expenses incident to the performance by the Company
of its obligations hereunder.


 






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6. Conditions
to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject
to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution
Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance
by the Company of its obligations hereunder and (iii) the following additional conditions:


 


(a) Filing
of Prospectus Supplement. The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission
have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each
Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder
and under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have
been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.


 


(b) Delivery
of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager, to the extent requested by the Manager
and upon reasonable advance notice in connection with any offering of the Shares, their respective opinions and negative assurance
statements, dated as of such date and addressed to the Manager in form and substance acceptable to the Manager.


 


(c) Delivery
of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager, to the extent requested
by the Manager and upon reasonable advance notice in connection with any offering of the Shares, a certificate of the Company signed
by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated as of such
date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any
Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement
and that:


 


(i) the
representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect
as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such date;


 






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(ii) no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and


 


(iii) since
the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Registration Statement and the Prospectus.


 


(d) Delivery
of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants to have furnished
to the Manager, to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the
Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance
satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review
of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement
and the Prospectus and provide customary “comfort” as to such review in form and substance satisfactory to the Manager.


 


(e) No
Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the
Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or
decrease in previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6
or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the
Incorporated Documents (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof),
the Incorporated Documents and the Prospectus (exclusive of any amendment or supplement thereto).


 


(f) Payment
of All Fees. The Company shall have paid the required Commission filing fees relating to the Ordinary Shares within the time
period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance
with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b).


 






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(g) No
FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and
arrangements under this Agreement.


 


(h) Shares
Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market,
and satisfactory evidence of such actions shall have been provided to the Manager.


 


(i) Other
Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager
such further information, certificates and documents as the Manager may reasonably request.


 


If any of the conditions
specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager
and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior
to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company
in writing or by telephone or facsimile confirmed in writing.


 


The documents required
to be delivered by this Section 6 shall be delivered to the office of McDermott Will & Emery LLP, counsel for the Manager,
at 340 Madison Avenue, New York, NY 10173-1922, on each such date as provided in this Agreement.


 


7. Indemnification
and Contribution.


 


(a)Indemnification
by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees and agents of
the Manager and each Person who controls the Manager within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment
thereof, or in the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading or result from or relate to any breach
of any of the representations, warranties, covenants or agreements made by the Company in this Agreement, and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information
furnished to the Company by the Manager specifically for inclusion therein. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.


 






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(b)Indemnification
by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each Person who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information
relating to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the
foregoing indemnity; provided, however, that in no case shall the Manager be responsible for any amount in excess
of the Broker Fee applicable to the Shares and paid hereunder. This indemnity agreement will be in addition to any liability which
the Manager may otherwise have.


 


(c)Indemnification
Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election
to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded 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, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding.


 






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(d)Contribution.
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending the same) (collectively “Losses”) to which the Company and the Manager may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Manager on the other from
the offering of the Shares; provided, however, that in no case shall the Manager be responsible for any amount in
excess of the Broker Fee applicable to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Manager severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company on the one hand and of the Manager on the other in connection
with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received
by it, and benefits received by the Manager shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder
as determined by this Agreement. Relative fault shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Manager on the other, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Manager agree that
it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d),
no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each Person who controls
the Manager within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of the Manager
shall have the same rights to contribution as the Manager, and each Person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).


 


8. Termination.


 


(a)The
Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time upon two (2) Business Days’
prior written notice. Any such termination shall be without liability of any party to any other party except that (i) with
respect to any pending sale through the Manager for the Company, the obligations of the Company, including in respect of compensation
of the Manager, shall remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5,
6, 7, 8, 9, 10, 12 and 14 of this Agreement shall remain in full force and effect notwithstanding such termination.


 


(b)The
Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be
without liability of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12 and 14 of this
Agreement shall remain in full force and effect notwithstanding such termination.


 


(c)This
Agreement shall remain in full force and effect until the earliest of such date that this Agreement is terminated pursuant to Sections 8(a)
or (b) above or the date on which all the Shares covered by this Agreement have been sold or otherwise by mutual agreement
of the parties, provided that any such termination by mutual agreement shall in all cases be deemed to provide that Sections 5,
6, 7, 8, 9, 10, 12 and 14 shall remain in full force and effect.


 






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(d)Any
termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the
case may be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such
sale of the Shares shall settle in accordance with the provisions of Section 2(b) of this Agreement.


 


(e)In the
case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms
Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company
prior to the Time of Delivery relating to such Shares, if any, and confirmed promptly by facsimile or electronic mail, if since
the time of execution of the Terms Agreement and prior to such delivery and payment, (i) trading in the Ordinary Shares shall
have been suspended by the Commission or the Trading Market or trading in securities generally on the Trading Market shall have
been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which
on financial markets is such as to make it, in the sole judgment of the Manager, impractical or inadvisable to proceed with the
offering or delivery of the Shares as contemplated by the Prospectus (exclusive of any amendment or supplement thereto).


 


9. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or controlling
Persons referred to in Section 7, and will survive delivery of and payment for the Shares.


 


10. Notices.
All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, e-mailed or facsimiled
to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.


 


11. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling Persons referred to in Section 7, and no other Person will have any right or
obligation hereunder.


 


12. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through
which it may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with
the purchase and sale of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s
engagement of the Manager in connection with the offering and the process leading up to the offering is as independent contractors
and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection
with the offering (irrespective of whether the Manager has advised or is currently advising the Company on related or other matters).
The Company agrees that it will not claim that the Manager has rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.


 






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13. Integration.
This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the
Company and the Manager with respect to the subject matter hereof.


 


14. Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right.


 


15. Applicable
Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i)
agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in
New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii)
waives any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably
consents to the jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge
service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County
of New York, or in the United States District Court for the Southern District of New York and agrees that service of process upon
the Company mailed by certified mail to the Company’s address shall be deemed in every respect effective service of process
upon the Company, in any such suit, action or proceeding, and service of process upon the Manager mailed by certified mail to the
Manager’s address shall be deemed in every respect effective service process upon the Manager, in any such suit, action or
proceeding. If either party shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for its reasonable attorney’s fees and other costs
and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.


 


16. Waiver
of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions
contemplated hereby or thereby. 


 


17. Counterparts.
This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute an original and
all of which together shall constitute one and the same agreement, which may be delivered by facsimile or in .pdf file via e-mail.


 


18. Headings.
The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction
hereof.


   


***************************


 




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If the foregoing is
in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company and the Manager.


 


	Very
    truly yours,
	 
	ENLIVEX
    THERAPEUTICS LTD.
	 	 
	By:	/s/ Oren
    Hershkovitz          	 
	Name: 
    	Oren Hershkovitz	 
	Title: 	CEO	 
	 	 
	Address
    for Notice:	 
	 	 
	14
    Einstein Street	 
	Nes
    Ziona, Israel 7403618	 
	 	 
	The
    foregoing Agreement is hereby confirmed and accepted as of the date first written above.
	 
	H.C.
    WAINWRIGHT & CO., LLC
	 	 
	By:	/s/ Edward D. Silvera	 
	Name: 	Edward D.
    Silvera	 
	Title: 	Chief Operating
    Officer	 
	 	 
	Address
    for Notice:	 
	 	 
	430
    Park Avenue	 
	New
    York, NY 10022	 






 




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Form of Terms Agreement


 


ANNEX I 


 


ENLIVEX THERAPEUTICS LTD. TERMS AGREEMENT


 


Dear Sirs:


 


 Enlivex
Therapeutics Ltd. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At
The Market Offering Agreement, dated October 22, 2020 (the “At The Market Offering Agreement”), between the
Company and H.C. Wainwright & Co., LLC (“Manager”), to issue and sell to Manager the securities specified
in the Schedule I hereto (the “Purchased Shares”).


 


 Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent
of the Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be
part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations
and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of
Delivery, except that each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference
to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the At The Market
Offering Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement
and the Time of Delivery in relation to the Prospectus as amended and supplemented to relate to the Purchased Shares.


 


 An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus,
as the case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed
with the Securities and Exchange Commission.


 


 Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.


 




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If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms
Agreement, including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute
a binding agreement between the Manager and the Company.


 


	ENLIVEX THERAPEUTICS LTD.	 
	 	 
	By:	                  	 
	Name:	 	 
	Title:	 	 
	 	 
	ACCEPTED as of the date first written above.	 
	 	 
	H.C. WAINWRIGHT & CO., LLC	 
	 	 
	By:	 	 
	Name:	 	 
	Title:	 	 



 


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