Exhibit
10.1


 





AT
THE MARKET OFFERING AGREEMENT


 


June
10, 2021


 


H.C.
Wainwright & Co., LLC


430
Park Avenue


New
York, NY 10022


 


Ladies
and Gentlemen:


 


Microbot
Medical Inc., a Delaware corporation (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” shall mean 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, that, for purposes of clarity, 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.


 


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


 


“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).


 


“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).


 


“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.


 




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“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).


 


“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).


 


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


 


“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.


 


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


 


“Registration
Statement” shall mean the shelf registration statement (File Number 333-250966) on Form S-3, 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).


 


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


 


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


 




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“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).


 


“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 the Nasdaq Capital Market.


 


2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to the lesser of such number of shares (the
“Shares”) of the Company’s common stock, $0.01 par value per share (“Common Stock”), that
does not exceed (a) the number or dollar amount of shares of Common Stock registered on the Registration Statement, pursuant to which
the offering is being made, (b) the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock
issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s
authorized capital stock), or (c) the number or dollar amount of shares of Common Stock that would cause the Company or the offering
of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction
I.B.6 of Registration Statement on Form S-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.


 


(a)
Appointment of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company 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.


 




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(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, as sales agent for the Company, on the following terms:


 


(i)
The Shares are to be sold on a daily basis or otherwise 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 (“Sales
Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate 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 shares of Common Stock 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 or entity 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.


 


(iii)
The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable 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
shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of
such notice.


 




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(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 Common
Stock or to or through a market maker. 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
disclosing the terms of such privately negotiated transaction.


 


(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 shall be by electronic mail) to the Company following the close of trading on the
Trading Market each day in 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 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 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 (except for any representation and warranty which is as of
a specific date, in which case such representation and warranty shall be affirmed as of such specific 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.


 


(ix)
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other
similar transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive
the Distribution, the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant
to a Sales Notice on the Record Date, the Company covenants and agrees that the Company shall issue and deliver such Shares to the Manager
on the Record Date and the Record Date shall be the Settlement Date and the Company shall cover any additional costs of the Manager in
connection with the delivery of Shares on the Record Date.


 




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(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.


 


(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 and (B) 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.


 




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(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Manager at least one Business Day’s prior notice of its intent to sell any
Shares in order to allow the Manager time to comply with Regulation M.


 


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 (except to
the extent such representation and warranty specifies a different time), except to the extent set forth in the Registration Statement,
the Prospectus or the Incorporated Documents.


 


(a)
Subsidiaries. All of the direct and indirect material subsidiaries (individually, a “Subsidiary”) of the Company
are set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K 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 in good standing under the laws of the jurisdiction of its incorporation or organization, 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 respective certificate or articles of incorporation, 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 (or authorized or qualified to do business, in such jurisdictions where good standing is not applicable) 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, would not 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,
a partial proceeding, such as a deposition), whether commenced or threatened in writing) 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 or the Company’s stockholders 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 it of the 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 incorporation, 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 would not 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 application(s)
to and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, and
(iv) 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”) (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 imposed by the Company. The Company has reserved from its
duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement. The issuance by the Company
of the Shares has been registered under the Act and all of the Shares are freely transferable and tradable by the purchasers thereof
without restriction (other than any restrictions arising solely from an act or omission of such a purchaser). The Shares are being issued
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.


 




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(g)
Capitalization. The capitalization of the Company is as set forth in the SEC Reports as of the date set forth therein. The Company
has not issued any capital stock since its most recently filed periodic report under the Exchange Act (or in respect of issuances following
the date hereof, as set forth in its most recently filed periodic report under the Exchange Act or in a Form 8-K), other than pursuant
to the exercise of employee stock options under the Company’s or Subsidiaries’ equity incentive, performance, stock option
or compensatory plan, contract or arrangement (a “Plan”), the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of securities exercisable, exchangeable
or convertible into Common Stock (“Common Stock Equivalents”) outstanding as of the date of the most recently filed
periodic report under the Exchange Act. 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 SEC Reports, 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 shares
of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company
or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any
Subsidiary. The issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock 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. 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. Except as disclosed in the SEC Reports, the Company does
not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the
outstanding shares of capital stock of the Company 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 shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. There are no stockholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between
or among any of the Company’s stockholders.


 


(h)
Registration Statement. The Company meets the requirements for use of Form S-3 under the Act with respect to the offering of the
Shares contemplated hereby 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 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 years before the Execution Time. The Company
meets the transaction requirements with respect to the aggregate market value of securities being sold pursuant to the offering of the
Shares and during the twelve (12) months prior to the offering of the Shares, as set forth in General Instruction I.B.6 of Form S-3.


 




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(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.


 




    	 	13	 



    	 



    

 


(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 intends or has threatened in writing to do so.


 


(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 two years preceding the date hereof,
or preceding the date on which the representations and warranties of the Company are repeated or deemed to be made pursuant to this Agreement,
as applicable (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)
[RESERVED]


 




    	 	14	 



    	 



    

 


(o)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as disclosed in an SEC Report filed prior to the date hereof or filed prior to the applicable Sales Notice,
(i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse
Effect, (ii) the Company has not incurred any material 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 filings made with the Commission, (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 stockholders 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 a Plan. Except as disclosed in the SEC Reports, 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 1 Trading
Day prior to the date that this representation is made.


 


(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”), which (i) adversely affects or challenges the legality, validity or enforceability of
this Agreement or the Shares or (ii) would reasonably be expected to result in a Material Adverse Effect. Except as set forth in the
SEC Reports, neither the Company nor any Subsidiary, nor, to the knowledge of the Company, any current director or officer thereof, is
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. Except as set forth in the SEC Reports, 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.


 




    	 	15	 



    	 



    

 


(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 would 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 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, to the Company’s
knowledge, 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 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 would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


(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 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 as would not have or reasonably be
expected to result in a Material Adverse Effect.


 




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(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 clause (i), (ii) and (iii), the failure to so comply would reasonably be expected
to result in, 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 would not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any written 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 marketable title in fee simple to all real property owned by them
and good and marketable title in 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.


 


(v)
Intellectual Property. To the Company’s knowledge, 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 would 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 would 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, except as would not have or reasonably be expected to not have a Material Adverse Effect. 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 would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.


 




    	 	17	 



    	 



    

 


(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 the Company and the Subsidiaries reasonably believe are adequate for the conduct of their businesses
and as is customary for companies engaged in similar businesses in similar industries, including, but not limited to, directors and officers
insurance coverage.


 


(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, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary, other compensation or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company
and (iii) other employee benefits, including stock option agreements under any Plan.


 




    	 	18	 



    	 



    

 


(y)
Sarbanes Oxley; Internal Accounting Controls. 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 designed to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with 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. Except as disclosed in the SEC Reports, 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 periodic report (Form 10-K or Form 10-Q) under the Exchange Act (such date, the “Evaluation Date”). The Company
presented in its most recently filed periodic report (Form 10-K or Form 10-Q) 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 is 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
with any agent or any other representative in respect of at the market offerings of the Shares.


 


(bb)
[RESERVED]


 




    	 	19	 



    	 



    

 


(cc) Listing
and Maintenance Requirements. The Common Stock is listed on the Trading Market and the issuance of the Shares as contemplated by
this Agreement does not contravene the rules and regulations of the Trading Market. The Common Stock is 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 Common Stock 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 Common Stock is or has 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 Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another
established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other
established clearing corporation) in connection with such electronic transfer.


 


(dd) Application
of Takeover Protections. The Company and the Board 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 certificate of incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to the Shares.


 


(ee) Solvency.
Except as set forth in the SEC Reports, 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 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 any Subsidiary in
excess of $50,000 (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 $50,000 due under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in
default with respect to any Indebtedness.


 


(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 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.


 




    	 	20	 



    	 



    

 


(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 the Foreign Corrupt Practices Act of 1977, as amended.


 


(hh) Accountants.
The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief 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,
2021.


 


(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 Shares.


 




    	 	21	 



    	 



    

 


(jj) FDA.
As to each product that is 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 promulgated thereunder (“FDCA”) and that is
being manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each
such product, a “Medical Device Product”), such Medical Device Product is being manufactured, packaged, labeled,
tested, distributed, sold and/or marketed by the Company in compliance with all applicable requirements under the FDCA and
comparable foreign laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure, or
application approval, good manufacturing practices, good laboratory practices, good clinical practices, labeling, 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, nor has the Company
or any of its Subsidiaries received any written notice, warning letter or other written communication from the FDA or any other
governmental entity that (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 Medical Device
Product, (ii) imposes a clinical hold on any clinical investigation involving a Medical Device Product being conducted or sponsored
by the Company or any of its Subsidiaries, (iii) enters or proposes to enter into a consent decree of permanent injunction with the
Company or any of its Subsidiaries, or (iv) otherwise alleges any violation of the FDCA or any comparable foreign 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 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 or use in the United States of any Medical Device Product being developed by the Company.


 


(kk) Stock
Option Plans. Each stock option granted by the Company under a Plan was granted (i) in accordance with the terms of the Plan and
(ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock option would be
considered granted under GAAP and applicable law. No stock option granted under a 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, stock options prior to, or
otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information
regarding the Company or its Subsidiaries or their financial results or prospects.


 


(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)
[RESERVED]


 




    	 	22	 



    	 



    

 


(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 stockholder of the Company, except as set forth in the Registration Statement,
the Base Prospectus, any Prospectus Supplement or the Prospectus.


 


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
such file or to provide the Manager an opportunity to object to such filing if the filing does not name the Manager and does not relate
to the transaction herein provided). 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 the Company 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 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 practicable.


 




    	 	23	 



    	 



    

 


(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.


 


(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, (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 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.


 




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(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, and
reasonably requested in connection with, the offering of the Shares.


 


(f)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of
such jurisdictions 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.


 




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(h)
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously
delivered shall not apply during such three Business Days) for at least three (3) Business Days prior to any 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 other shares of Common Stock or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to
waive this obligation, provided that, without compliance with the foregoing obligation, (i) the Company may issue and sell Common
Stock pursuant to any employee equity plan, stock ownership plan, dividend reinvestment plan or other similar plan of the Company
in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion or exercise of Common Stock
Equivalents outstanding at the Execution Time and (ii) the Company may issue shares of Common Stock or any Common Stock Equivalents
in privately negotiated transactions to vendors, service providers, strategic partners or potential strategic partners, provided
that such issuances are not made for capital raising purposes and are conducted in a manner so as not to be integrated with the
offering of Shares hereby and to not constitute a distribution for purposes of Regulation M.


 


(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 might 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.


 


(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.


 




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(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, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii)
the Company files its quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K
containing amended financial information (other than information that is furnished and not filed), if the Manager reasonably determines
that the information in such Form 8-K is material, or (v) 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), (iv) and (v) 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 on 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. The requirement to provide a certificate under this Section 4(k) shall be waived for any Representation
Date occurring at a time at which no Sales Notice is pending, which waiver shall continue until the earlier to occur of the date
the Company delivers a Sales Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and
the next occurring Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding the foregoing,
(i) upon the delivery of the first Sales Notice hereunder and (ii) if the Company subsequently decides to sell Shares following
a Representation Date when the Company relied on such waiver and did not provide the Manager with a certificate under this Section
4(k), then before the Manager sells any Shares, the Company shall provide the Manager with such a certificate, dated the date
of the Sales Notice.


 


(l)
Bring Down Opinions; Negative Assurance. Unless waived by the Manager, the Company shall furnish or cause to be furnished
forthwith to the Manager and to counsel to the Manager a written opinion of counsel to the Company (“Company Counsel”)
addressed to the Manager and dated and delivered on such date, in form and substance reasonably satisfactory to the Manager, including
a negative assurance representation, at each Representation Date; provided, however, that the requirement for the
Company to furnish or cause to be furnished an opinion (but not with respect to a negative assurance representation) under this
Section 4(l) shall be waived for any Representation Date other than a Representation Date on which a material amendment to the
Registration Statement or Prospectus is made or on which the Company files its Annual Report on Form 10-K or a material amendment
thereto under the Exchange Act, unless the Manager reasonably requests, upon a material adverse change in the results of operations,
business or condition of the Company, such opinion required by this Section 4(l) in connection with a Representation Date, upon
which request such opinion shall be deliverable hereunder. The Manager hereby agrees that Company Counsel may provide a reliance
letter for a previously delivered opinion or negative assurance representation, stating that such opinion or negative assurance
representation may continue to be relied on, in lieu of providing an opinion or negative assurance representation on any such
date.


 




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(m)
Auditor Bring Down “Comfort” Letter. Unless waived by the Manager, the Company shall cause the Company’s
auditors (the “Accountants”), or other independent accountants satisfactory to the Manager forthwith to furnish
the Manager a “comfort” letter, dated on such date, in form satisfactory to the Manager, of the same tenor as the
letter 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 letter, at each Representation Date; provided, however, that the requirement
to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for any Representation
Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or on
which the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager
reasonably requests, upon a material adverse change in the results of operations, business or condition of the Company, the letter
required by this Section 4(m) in connection with a Representation Date, upon which request such letter shall be deliverable hereunder.


 


(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 at each Representation Date, unless waived by the Manager, 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
fees in each such Representation Date due diligence session at each Representation Date due diligence session, up to a maximum
of $2,500 per Representation Date, plus any incidental expense incurred by the Manager in connection therewith; notwithstanding
the foregoing, the reimbursement fees paid by the Company to the Manager pursuant to this Section 6(n) shall not exceed $11,000
in any given calendar year.


 


(o)
Acknowledgment of Trading. The Company consents to the Manager trading in the Common Stock 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, provided that such trading is conducted in accordance with applicable law.


 




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(p)
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q,
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 quarter; and, if required by
any subsequent change in Commission policy or request, more frequently by means of a Current Report on Form 8-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 in each such case (i) for
any representation and warranty which is as of a specific date, in which case such representation and warranty shall be affirmed
as of such specific date and (ii) 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 Shares. The Company shall ensure that there are at all times sufficient shares of Common Stock to provide
for the issuance, free of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common
Stock held in treasury, of the maximum aggregate number of Shares authorized for issuance by the Board 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 commercially 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)
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall
file a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s
compensation, and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time
required by Rule 424.


 


(x)
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 additional shares
of Common Stock necessary to complete such sales of the Shares 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 pursuant to Item 12 of Form S-3, 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 (if reasonably requested by the Manager) 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 fees and expenses of the Company’s accountants and
the fees and expenses of counsel (including local and special counsel) for the Company; (viii) the filing fee under FINRA Rule
5110; (ix) the reasonable fees and expenses of the Manager’s counsel, not to exceed $50,000 (excluding any fees for Representation
Date due diligence sessions provided for under Section 4(n)), which amount shall be due and payable upon the date on which the
aggregate gross proceeds of the sale of Shares hereunder exceeds $1,000,000; and (x) 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 shall 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 its opinion and negative
assurance statement, 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 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:


 




    	 	31	 



    	 



    

 


(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;


 


(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, contemplated in or incorporated by reference 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 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 material
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).


 




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(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the 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).


 


(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 Ellenoff Grossman & Schole LLP, counsel
for the Manager, at 1345 Avenue of the Americas, New York, New York 10105, email: capmkts@egsllp.com on each such date as provided
in this Agreement.


 




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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.


 


(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.


 




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(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, after discussion with counsel, 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.


 


(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).


 




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8.
Termination.


 


(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion
at any time upon one (1) Business Day’s 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, 7, 8, 9, 10, 12, the second sentence of 13 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 this Agreement 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, 7, 8, 9, 10, 12, the second sentence of 13 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 such date that this Agreement is terminated pursuant to Sections 8(a)
or (b) above 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, 7, 8, 9, 10, 12, the second sentence of 13 and 14 shall remain in full force and
effect.


 




    	 	36	 



    	 



    

 


(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 electronic mail, if since
the time of execution of the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Stock 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.


 




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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.


 


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. Notwithstanding anything herein to the
contrary, this Agreement shall not supersede the letter agreement, dated December 24, 2019, by and between the Company and the
Manager, which shall, to the extent it remains effective in accordance with the terms thereof, continue to survive and be enforceable
by the Manager in accordance with its terms, provided that, in the event of a conflict between the terms of the letter agreement
and this Agreement, the terms of this Agreement shall prevail, provided, further, that the parties hereto expressly acknowledge
and agree that no sale pursuant to this Agreement shall extend the term of exclusivity of the Manager under the letter agreement.


 


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,


 


Microbot
Medical Inc.


 


	By:	/s/
    Harel Gadot	 
	Name:	Harel
    Gadot	 
	Title:	President
    and Chief Executive Officer	 


 


Address
for Notice:


25
Recreation Park Drive, Unit 108


Hingham,
Massachusetts 02043


Attention:
Harel Gadot, President, CEO and Chairman


Email:
harel@microbotmedical.com


elaina@microbotmedical.com


 


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, New York 10022


Attention:
Chief Executive Officer


E-mail:
notices@hcwco.com


 




    	 	39	 



    	 



    

 


Form
of Terms Agreement


ANNEX
I


Microbot
Medical Inc.


TERMS
AGREEMENT


 


Dear
Sirs:


 


Microbot
Medical Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The
Market Offering Agreement, dated June 10, 2021 (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 shares of
the Purchased Shares at the time and place and at the purchase price set forth in the Schedule I hereto.


 







    	 	40	 



    	 



    

 


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.


 


	Microbot
    Medical Inc.
	 	 	 
	By:	        	 
	Name:	 	 
	Title:	 	 


 


ACCEPTED
as of the date first written above.


 


	H.C. WAINWRIGHT & CO., LLC	 
	 	             	 
	By:	 	 
	Name:	 	 
	Title:	 	 


 




    	 	41