EXHIBIT 10.1


 


Arcturus Therapeutics Holdings Inc.


Common Stock


($0.001 par value)


 


SALES AGREEMENT


 


March 27, 2020


 


Stifel, Nicolaus & Company, Incorporated


787 Seventh Avenue

New York, New York 10019


 


Ladies and Gentlemen:


 


Arcturus Therapeutics
Holdings Inc., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with Stifel, Nicolaus & Company, Incorporated (the “Agent”), as follows:


 


1.                  
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the
terms and subject to the conditions set forth herein, it may issue and sell through the Agent up to $40,000,000 of shares of common
stock, $0.001 par value per share, of the Company (the “Shares”), subject to the limitations set forth
in Section 5(c) (the “Placement Shares”). Notwithstanding anything to the contrary contained herein,
the parties hereto agree that compliance with the limitation set forth in this Section 1 on the aggregate gross sales price
of Placement Shares that may be issued and sold under this Agreement from time to time shall be the sole responsibility of the
Company, and that the Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares
through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared
effective by the Securities and Exchange Commission (the “Commission”) on July 29, 2019, although nothing
in this Agreement shall be construed as requiring the Company to issue any Placement Shares.


 


The Company has prepared
and filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Securities Act”), with the Commission a registration statement on Form S-3 (File
No. 333-232281), including a base prospectus, relating to certain securities, including the Placement Shares, to be issued from
time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included
as part of the such registration statement at the time the registration statement became effective, which prospectus supplement
specifically relates to the Placement Shares to be issued from time to time pursuant to this Agreement (the “Prospectus
Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included
as part of such registration statement at the time it became effective, as supplemented by the Prospectus Supplement. Except where
the context otherwise requires, such registration statement, including all documents filed as part thereof or incorporated by reference
therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant
to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or Rule 462(b)
under the Securities Act, is herein called the “Registration Statement.” The base prospectus, including
all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus
Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with
the Commission pursuant to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus”
(as used herein, as defined in Rule 433 under the Securities Act (“Rule 433”)), relating to the Placement
Shares that (i) is required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i),
in each case, in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained
in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.”


 






    


    


    

 


Any reference herein
to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus shall be deemed
to refer to and include the documents, if any, that are or are deemed to be incorporated by reference therein (the “Incorporated
Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus shall be deemed
to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration
Statement, or the respective dates of the Prospectus Supplement, Prospectus or such issuer free writing prospectus, as the case
may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the
Prospectus or any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant
to its Electronic Data Gathering Analysis and Retrieval System or, if applicable, the Interactive Data Electronic Application system
when used by the Commission (collectively, “EDGAR”).


 


2.                  
Placements. Each time that the Company wishes to issue and sell any Placement Shares through the Agent hereunder
(each, a “Placement”), it will notify the Agent by email notice (or other method mutually agreed to in
writing by the parties) (each such notice, a “Placement Notice”) containing the parameters in accordance
with which it desires such Placement Shares to be sold, which at a minimum shall include the maximum number or amount of Placement
Shares to be sold, the time period during which sales are requested to be made, any limitation on the number or amount of Placement
Shares that may be sold in any one Trading Day (as defined in Section 3) and any minimum price below which sales may not
be made, a form of which containing such minimum sales parameters is attached hereto as Schedule 1. The Placement
Notice must originate from one of the individuals authorized to act on behalf of the Company and set forth on Schedule 2
(with a copy to each of the other individuals from the Company listed on such Schedule 2), and shall be addressed
to each of the individuals from the Agent set forth on Schedule 2, as such Schedule 2 may be updated
by either party from time to time by sending a written notice containing a revised Schedule 2 to the other party
in the manner provided in Section 12 (including by email correspondence to each of the individuals of the Company set forth
on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice
is sent, other than via auto-reply). The Placement Notice shall be effective upon receipt by the Agent unless and until (i) in
accordance with the notice requirements set forth in Section 4, the Agent declines to accept the terms contained therein
for any reason, in its sole discretion, within two Trading Days of the date the Agent receives the Placement Notice, (ii) in accordance
with the notice requirements set forth in Section 4, the Agent suspends sales under the Placement Notice for any reason
in its sole discretion, (iii) the entire amount of the Placement Shares has been sold pursuant to this Agreement, (iv) in
accordance with the notice requirements set forth in Section 4, the Company suspends sales under or terminates the
Placement Notice for any reason in its sole discretion, (v) the Company issues a subsequent Placement Notice and explicitly indicates
that its parameters supersede those contained in the earlier dated Placement Notice or (vi) this Agreement has been terminated
pursuant to the provisions of Section 11. The amount of any discount, commission or other compensation to be paid by the
Company to the Agent in connection with the sale of the Placement Shares effected through the Agent shall be calculated in accordance
with the terms set forth in Schedule 3. It is expressly acknowledged and agreed that neither the Company nor the
Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers
a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth above, and
then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms
of a Placement Notice, the terms of the Placement Notice will control with respect to the matters covered thereby.


 






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3.                  
Sale of Placement Shares by the Agent. On the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, including, without limitation, Section 5(c), upon the effectiveness of a Placement
Notice as provided in Section 2, and unless the sale of the Placement Shares described therein has been declined, suspended
or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice,
will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal
laws, rules and regulations and the rules of the Nasdaq Global Market (“Nasdaq”) to sell such Placement
Shares up to the number or amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Agent
will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set
forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom
the notice is sent, other than via auto-reply) no later than the opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number or amount of Placement Shares
sold on such Trading Day, the volume-weighted average price of the Placement Shares sold, the Net Proceeds (as defined below) payable
to the Company and an itemization of the deductions made by the Agent from the gross proceeds that it receives from such sales.
Unless otherwise specified by the Company in a Placement Notice, the Agent may sell Placement Shares by any method permitted by
law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act, including, without limitation,
sales made directly on or through Nasdaq, on or through any other existing trading market for the Shares or to or through a market
maker. If expressly authorized by the Company (including in a Placement Notice), the Agent may also sell Placement Shares by any
other method permitted by law, including but not limited to privately negotiated transactions. Notwithstanding the provisions of
Section 6(uu), except as may be otherwise agreed by the Company and the Agent, the Agent shall not purchase Placement Shares
on a principal basis pursuant to this Agreement unless the Company and the Agent enter into a separate written agreement setting
forth the terms of such sale. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful
in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity
if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules
of Nasdaq to sell such Placement Shares as required under this Agreement and (iii) the Agent shall be under no obligation to purchase
Placement Shares on a principal basis pursuant to this Agreement unless the Company and the Agent enter into a separate written
agreement setting forth the terms of such sale. For the purposes hereof, “Trading Day” means any day
on which Shares are purchased and sold on Nasdaq.


 


4.                  
Suspension of Sales.


 


(a)               
The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2),
suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair either party’s
obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees
that no such notice under this Section 4 shall be effective against the other party unless notice is sent by one of the
individuals named on Schedule 2 hereto to the other party in writing (including by email correspondence to each of
the individuals of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply).


 






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(b)               
Notwithstanding any other provision of this Agreement, during any period in which the Company is, or is reasonably deemed
to be, in possession of material non-public information, the Company and the Agent agree that (i) no sale of Placement Shares will
take place, (ii) the Company shall not request the sale of any Placement Shares and shall cancel any effective Placement Notices
instructing the Agent to make any sales and (iii) the Agent shall not be obligated to sell or offer to sell any Placement Shares.


 


(c)               
While a suspension is in effect any obligation under Sections 7(l), 7(m), 7(n) and 7(o) with
respect to the delivery of certificates, opinions, or comfort letters to the Agent, shall be waived.


 


5.                  
Settlement and Delivery of the Placement Shares.


 


(a)               
Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will occur on the
second Trading Day (or such earlier day as is industry practice or as is required for regular-way trading) following the date on
which such sales are made (each, a “Settlement Date”). The amount of proceeds to be delivered to the
Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be
equal to the aggregate gross sales price received by the Agent at which such Placement Shares were sold, after deduction of (i) the
Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof,
(ii) any other amounts due and payable by the Company to the Agent hereunder pursuant to Section 7(g) hereof and (iii) any
transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.


 


(b)               
On or before each Settlement Date, the Company will issue the Placement Shares being sold on such date and will, or will
cause its transfer agent to, electronically transfer such Placement Shares by crediting the Agent’s or its designee’s
account (provided the Agent shall have given the Company written notice of such designee prior to the Settlement Date) at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means
of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be duly authorized, freely tradeable,
transferable, registered Shares in good deliverable form. On each Settlement Date, the Agent will deliver the related Net Proceeds
in same day funds to an account designated by the Company on or prior to the Settlement Date. The Agent shall be responsible for
providing DWAC instructions or other instructions for delivery by other means with regard to the transfer of the Placement Shares
being sold. In addition to and in no way limiting the rights and obligations set forth in Section 9(a) hereto, the Company
agrees that if the Company or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized, freely
tradeable, transferable, registered Placement Shares in good deliverable form by 2:30 P.M., New York City time, on a Settlement
Date (other than as a result of a failure by the Agent to provide instructions for delivery), and as a result the Agent cancels
such trade, the Company will (i) take all necessary action to cause the full amount of any Net Proceeds that were delivered to
the Company’s account with respect to such settlement, together with any costs incurred by the Agent and/or its clearing
firm in connection with recovering such Net Proceeds, to be immediately returned to the Agent or its clearing firm no later than
5:00 P.M., New York City time, on such Settlement Date, by wire transfer of immediately available funds to an account designated
by the Agent or its clearing firm, (ii) indemnify and hold the Agent and its clearing firm harmless against any reasonably incurred
out-of-pocket loss, claim, damage, or expense (including reasonable legal fees and expenses), arising out of or in connection with
such default by the Company or its transfer agent (if applicable) and (iii) pay to the Agent any commission, discount or other
compensation to which it would otherwise have been entitled absent such default. Certificates for the Placement Shares, if any,
shall be in such denominations and registered in such names as the Agent may request in writing one Business Day (as defined below)
before the applicable Settlement Date. Certificates for the Placement Shares, if any, will be made available by the Company for
examination and packaging by the Agent in New York City not later than 12:00 P.M., New York City time, on the Business Day prior
to the applicable Settlement Date.


 






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(c)               
Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect
to the sale of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of: (i) the number or dollar amount of Shares registered pursuant to, and available for offer and sale
under, the Registration Statement pursuant to which the offering of Placement Shares is being made, (ii) the number of authorized
but unissued Shares of the Company (less Shares issuable upon exercise, conversion or exchange of any outstanding securities of
the Company or otherwise reserved from the Company’s authorized capital), (iii) the number or dollar amount of Shares permitted
to be offered and sold by the Company under Form S-3 (including General Instruction I.B.6. thereof, if such instruction is applicable),
(iv) the number or dollar amount of Shares the Company’s board of directors or a duly authorized committee thereof is
authorized to issue and sell from time to time, and notified to the Agent in writing, or (v) the dollar amount of Shares for which
the Company has filed the Prospectus Supplement. Under no circumstances shall the Company cause or request the offer or sale of
any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s
board of directors or a duly authorized committee thereof, and notified to the Agent in writing. Notwithstanding anything to the
contrary contained herein, the parties hereto acknowledge and agree that compliance with the limitations set forth in this Section
5(c) on the number or dollar amount of Placement Shares that may be issued and sold under this Agreement from time to time
shall be the sole responsibility of the Company, and that the Agent shall have no obligation in connection with such compliance.


 


6.                  
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Agent
that, except as set forth in the Registration Statement or the Prospectus, as of the date of this Agreement, and (unless such representation
or warranty is made expressly as of the date hereof) as of (i) each Representation Date (as defined in Section 7(m)), (ii)
each date on which a Placement Notice is given, (iii) the date and time of each sale of any Placement Shares pursuant to this Agreement
and (iv) each Settlement Date (each such time or date referred to in clauses (i) through (iv), an “Applicable Time”):


 


(a)               
The Company and the transactions contemplated by this Agreement meet the requirements for and comply with the applicable
conditions for the use of Form S-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration Statement
has been filed with and has been declared effective by the Commission under the Securities Act. At the time the Registration Statement
originally became effective and at the time the Company’s Annual Report on Form 10-K for the year ended December 31, 2019,
was filed with the Commission, the Company met the then-applicable requirements for use of Form S-3 under the Securities Act, including
General Instruction I.B.1 of such form. The Registration Statement meets, and the offering and sale of Placement Shares as contemplated
hereby comply in all material respects with, the requirements of Rule 415(a)(1)(x) under the Securities Act. The Agent is named
as the agent engaged by the Company in the section entitled “Plan of Distribution” in the Prospectus Supplement. The
Company has not received, and has no notice from the Commission of, any notice pursuant to Rule 401(g)(1) under the Securities
Act objecting to the use of the shelf registration statement form. No stop order of the Commission preventing or suspending the
use of the base prospectus, the Prospectus Supplement or the Prospectus, or the effectiveness of the Registration Statement, has
been issued, and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission.
At the time of the initial filing of the Registration Statement, the Company paid the required Commission filing fees relating
to the securities covered by the Registration Statement, including the Shares that may be sold pursuant to this Agreement, in accordance
with Rule 457(o) under the Securities Act. Copies of the Registration Statement, the Prospectus, any such amendments or supplements
to any of the foregoing and all Incorporated Documents that were filed with the Commission on or prior to the date of this Agreement
have been delivered, or are available through EDGAR, to the Agent and its counsel.


 






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(b)               
Each of the Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective,
at each deemed effective date with respect to the Agent pursuant to Rule 430B(f)(2) under the Securities Act and as of each
Applicable Time, complied, complies and will comply in all material respects with the requirements of the Securities Act and did
not, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except that the representations and warranties set forth in
this sentence do not apply to Agent’s Information (as defined below). The Prospectus and any amendment or supplement thereto,
when so filed with the Commission under Rule 424(b) under the Securities Act, complied, complies and as of each Applicable Time
will comply in all material respects with the requirements of the Securities Act, and each Prospectus Supplement, Prospectus or
issuer free writing prospectus (or any amendments or supplements to any of the foregoing) furnished to the Agent for use in connection
with the offering of the Placement Shares was identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T. Neither the Prospectus nor any amendment or supplement thereto,
as of its date and as of each Applicable Time, included, includes or will include an untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and warranties set forth in this sentence do not apply
to Agent’s Information. Each Incorporated Document heretofore filed, when it was filed (or, if any amendment with respect
to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the
Exchange Act and were filed on a timely basis with the Commission, and any further Incorporated Documents so filed and incorporated
after the date of this Agreement will be filed on a timely basis and, when so filed, will conform in all material respects with
the requirements of the Exchange Act; no such Incorporated Document when it was filed (or, if an amendment with respect to any
such document was filed, when such amendment was filed), contained an 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; and no such Incorporated Document, when it is filed, will contain an untrue statement
of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements
in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by
the Agent specifically for use in the preparation thereof.


 


(c)               
(i) At the time of filing the Registration Statement and (ii) at the time of the execution of this Agreement (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 of the Securities Act (“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.


 


(d)               
[Reserved].


 


(e)               
Each issuer free writing prospectus, if any, as of its issue date and as of each Applicable Time, did not, does not and
will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any Incorporated Document deemed to be a part thereof that has not been superseded or modified.
Each issuer free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433 or that was prepared
by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities
Act.


 






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(f)                
The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the Agent’s
distribution of the Placement Shares under this Agreement, will not distribute any offering material in connection with the offering
and sale of the Placement Shares other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus
(as defined below).


 


(g)               
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission’s rules and guidelines applicable thereto.


 


(h)               
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section
15(d) of the Exchange Act. The Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed on Nasdaq, and
the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Shares
under the Exchange Act or delisting the Shares from Nasdaq, nor has the Company received any notification that the Commission or
Nasdaq is contemplating terminating such registration or listing. The Company is in compliance with the current listing standards
of Nasdaq. The Company will file a Notification of Listing of Additional Shares with Nasdaq with respect to the Placement Shares
prior to issuance by the Company of the first Placement Notice.


 


(i)                
Except for the Agent, there is no broker, finder or other party that is entitled to receive from the Company or any of its
Subsidiaries (as defined below) any brokerage or finder’s fee or other fee or commission as a result of any transactions
contemplated by this Agreement.


 


(j)                
The Company and each of its Subsidiaries are duly organized, validly existing as a corporation and in good standing under
the laws of their respective jurisdictions of organization.  The Company and each of its Subsidiaries are duly licensed or
qualified as a foreign corporation for transaction of business and in good standing (or the non-U.S. equivalent thereof) under
the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective
businesses requires such license or qualification, and have all corporate power and authority necessary to own or hold their respective
properties and to conduct their respective businesses as described in the Registration Statement and the Prospectus, except where
the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate,
have a material adverse effect or would reasonably be expected to have a material adverse effect on or affecting the assets, business,
operations, earnings, properties, condition (financial or otherwise), prospects, shareholders’ equity or results of operations
of the Company and the Subsidiaries taken as a whole, or prevent or materially interfere with consummation of the transactions
contemplated hereby (a “Material Adverse Effect”).


 


(k)               
The Company does not own or control, directly or indirectly, any corporation, association or other entity, other than the
subsidiaries listed on Schedule 4 attached hereto (each, a “Subsidiary”). The Company owns,
directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest,
encumbrance, right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and
are fully paid, nonassessable and free of preemptive and similar rights. No Subsidiary is prohibited or restricted, directly or
indirectly, from paying dividends to the Company, from making any other distribution with respect to such Subsidiary’s equity
securities, from repaying to the Company or any other Subsidiary any amounts that may from time to time become due under any loans
or advances to such Subsidiary from the Company or from transferring any property or assets to the Company or to any other Subsidiary.


 






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(l)                
The issued and outstanding Shares have been validly issued, are fully paid and nonassessable and, other than as disclosed
in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first refusal or similar rights.
The Company has an authorized, issued and outstanding capitalization as set forth in the Registration Statement and the Prospectus
as of the dates referred to therein (other than the grant of additional options under the Company’s existing share option
plans, or changes in the number of outstanding Shares of the Company due to the issuance of shares upon the exercise or conversion
of securities exercisable for, or convertible into, Shares outstanding on the date hereof) and such authorized capital conforms
in all material respects to the description thereof set forth in the Registration Statement and the Prospectus. The description
of the securities of the Company in the Registration Statement and the Prospectus is complete and accurate in all material respects.
Except as disclosed in or contemplated by the Registration Statement or the Prospectus, as of the date referred to therein, the
Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, or any securities or obligations
convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares of its authorized capital or
other securities.


 


(m)             
The Placement Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered
by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable and will
confirm in all material respects to the description thereof contained in the Prospectus. The issuance and sale of the Placement
Shares as contemplated hereby shall not be subject to any preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase the Placement Shares. When issued and delivered by the Company against payment therefor pursuant to this
Agreement, the purchasers of the Placement Shares issued and sold hereunder will acquire good, marketable and valid title to such
Placement Shares, free and clear of all pledges, liens, security interests, charges, claims or encumbrances. There are no restrictions
upon the voting or transfer of the Shares under the Company’s certificate of incorporation or other organizational documents
or any agreement or other instrument to which the Company is a party or otherwise filed as an exhibit to the Registration Statement.


 


(n)               
There is no statute, regulation, contract, agreement or other document required to be described in the Registration Statement,
Prospectus or in any Incorporated Document, or to be filed as an exhibit to the Registration Statement or any Incorporated Document
which is not described or filed as required. The statements set forth or incorporated by reference in the Prospectus, insofar as
they purport to constitute summaries of the terms of the statutes, regulations, contracts, agreements or other documents described
and filed, constitute accurate summaries of the terms thereof in all material respects.


 


(o)               
This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability, including
rights of indemnification, may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors’ rights generally and by general principles of equity.


 


(p)               
The Company is not and, after giving effect to the offering and sale of the Placement Shares and the application of the
proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company
Act of 1940, as amended.


 


(q)               
No consent, approval, license, permit, qualification, authorization or other order or decree of, or registration or filing
with, any court or other governmental, taxing or regulatory authority or agency, is required for the Company’s execution,
delivery and performance of this Agreement or consummation of the transactions contemplated hereby or by the Registration Statement
and the Prospectus (including the issuance and sale of the Placement Shares hereunder), except such as have been already obtained
or made or as may be required under the Securities Act, applicable state securities or Blue Sky laws, applicable rules of Nasdaq,
or Rule 5110 of the Financial Industry Regulatory Authority, Inc. (“FINRA”). In accordance with FINRA
Conduct Rule 5110(b)(7)(C)(i), the Placement Shares have been registered with the Commission on Form S-3 under the Securities Act
pursuant to the standards for such Form S-3 in effect prior to October 21, 1992.


 






    8


    


    

 


(r)                
Neither the execution and delivery by the Company of, nor the performance of the Company of its obligations under, this
Agreement will conflict with, result in a breach or violation of, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to: (i) the certificate of incorporation
or other organizational documents, of such entity, (ii) the terms of any indenture, contract, license, lease, mortgage, deed of
trust, note agreement, agreement or other instrument, obligation, condition, covenant or instrument to which it is a party or bound
or to which its property or assets is subject or (iii) any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company, any of its Subsidiaries or any of their respective properties or assets,
as applicable, except, in the case of clauses (ii) and (iii) above, for any such conflict, breach, violation or default that would
not, individually or in the aggregate, have a Material Adverse Effect.


 


(s)                
Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus: (i)
there has been no Material Adverse Effect or the occurrence of any development that the Company reasonably expects will result
in a Material Adverse Effect, (ii) neither the Company nor its Subsidiaries has (A) incurred any material liability or obligation,
indirect, direct or contingent, including without limitation any losses or interference with its business from fire, explosion,
flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court
or governmental action, order or decree, that are material, individually or in the aggregate, to the Company and its Subsidiaries,
considered as one entity, (B) entered into any material transactions not in the ordinary course of business or (C) issued or granted
any Shares or securities convertible into or exchangeable or exercisable for or that represent the right to receive Shares other
than under the Company’s existing share option plans; and (iii) there has not been any material decrease in the share capital
or any material increase in any short-term or long-term indebtedness of the Company or any of its Subsidiaries and there has been
no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or another
Subsidiary, by any Subsidiary on any class of shares, or any repurchase or redemption by the Company or any of its Subsidiaries
of any class of shares.


 


(t)                
The consolidated financial statements included or incorporated by reference in the Registration Statement and the Prospectus,
together with the related notes and schedules, present fairly in all material respects the consolidated financial position of the
Company and the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in shareholders’
equity of the Company and the Subsidiaries for the periods specified and have been prepared in compliance with the requirements
of the Securities Act and Exchange Act and in conformity with United States generally accepted accounting principles (“GAAP”)
applied on a consistent basis during the periods involved (except for such adjustments to accounting standards and practices as
are noted therein). To the extent applicable, any pro forma financial statements, information or data included or incorporated
by reference in the Registration Statement and the Prospectus comply with the requirements of Regulation S-X of the Securities
Act, including, without limitation, Article 11 thereof, fairly present the information set forth herein, and the assumptions used
in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate
to give effect to the circumstances referred to therein and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements and data. The other financial data set forth or incorporated by reference in the
Registration Statement and the Prospectus is accurately and fairly presented in all material respects and prepared on a basis consistent
in all material respects with the financial statements and books and records of the Company. There are no financial statements
(historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement or the Prospectus
that are no included or incorporated by reference therein as required. The Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not disclosed in the Registration
Statement and the Prospectus. All disclosures contained in the Registration Statement or the Prospectus that contain “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission) comply, in all material respects,
with Regulation G under the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. To the
Company’s knowledge, no person who has been suspended or barred from being associated with a registered public accounting
firm, or who has failed to comply with any sanction pursuant to Rule 5300 promulgated by the Public Company Accounting Oversight
Board (“PCAOB”), has participated in or otherwise aided the preparation of, or audited, the financial statements,
supporting schedules or other financial data filed with the Commission as a part of the Registration Statement and the Prospectus.


 






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(u)               
The statistical, industry-related and market-related data included or incorporated by reference in the Registration Statement
and the Prospectus were obtained or derived from sources which the Company reasonably and in good faith believes are reliable and
accurate, such data agree with the sources from which they are derived, and the Company has obtained the written consent to the
use of such data from such sources to the extent required.


 


(v)               
No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or its or their property is pending, or to the best knowledge of the Company, threatened, that (i) could reasonably
be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect.


 


(w)             
The Company and its Subsidiaries own or lease all such real properties as are necessary to the conduct of their operations
as presently conducted in all material respects.


 


(x)               
Neither the Company nor any Subsidiary is in violation or default of (i) any provision of its certificate of incorporation,
charter, bylaws, articles of association, limited liability company agreement, certificate or agreement of limited or general partnership,
or other similar organizational documents, as the case may be, of such entity, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which its property or assets is subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company, any of its Subsidiaries or any of their respective properties or assets, as applicable, except, in the case of
clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material
Adverse Effect.


 


(y)               
Ernst & Young LLP, whose reports on the consolidated financial statements of the Company is filed with the Commission
as part of the Company’s most recent annual report on Form 10-K filed with the Commission and incorporated by reference in
the Registration Statement and the Prospectus, is an independent registered public accounting firm as required by the Securities
Act, the Exchange Act and the rules of the PCAOB.


 


(z)               
There are no transfer taxes or other similar fees or charges under federal law, the laws of any state, any foreign law,
or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the
issuance by the Company or sale by the Company of the Placement Shares.


 






    10


    


    

 


(aa)            
The Company and each of its Subsidiaries have filed all federal, state, local and foreign income tax returns which have
been required to be filed and paid all income taxes shown thereon through the date hereof, to the extent that such taxes have become
due and are not being contested in good faith, except where the failure to so file or pay would not have a Material Adverse Effect.
Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined
adversely to the Company or any of its Subsidiaries which has had, or would have, individually or in the aggregate, a Material
Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment
which has been or might be asserted or threatened against it which would have a Material Adverse Effect.


 


(bb)           
No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the Company’s knowledge,
is threatened or imminent, and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees
of any of its or any of its Subsidiaries’ principal suppliers, manufacturers, contractors or customers, in each case that
would have a Material Adverse Effect. None of the employees of the Company or any of its Subsidiaries is represented by a union
and, to the knowledge of the Company, no union organizing activities are taking place. Neither the Company nor any of its Subsidiaries
has violated (or received notice of any violation of) any material federal, state or local law or foreign law relating to the discrimination
in hiring, promotion or pay of employees, nor any applicable wage or hour laws, or the rules and regulations thereunder, or analogous
foreign laws and regulations, which would, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.


 


(cc)            
Each of the Company and its Subsidiaries are insured by recognized and reputable institutions with policies in such amounts
and with such deductibles and covering such risks as are generally deemed adequate and customary for their businesses including,
but not limited to, policies covering real and personal property owned or leased by the Company and its Subsidiaries against theft,
damage, destruction, acts of vandalism and earthquakes and policies covering the Company and its Subsidiaries for clinical trial
liability claims. The Company has no reason to believe that it or any of its Subsidiaries will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as now conducted and at a cost that could not reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries has been denied any material insurance coverage which it has sought
or for which it has applied.


 


(dd)           
The Company and each of its Subsidiaries has good and marketable title in fee simple to all real property owned by them
and good and marketable title to all personal property owned by them that is material to their business, in each case free and
clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company or any Subsidiary; and any real property and buildings
held under lease by the Company or any of its Subsidiaries are held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings
by the Company or such Subsidiary.


 


(ee)            
The Company and its Subsidiaries possess and are operating in all material respects in compliance with such valid and current
material certificates, authorizations or permits required by United States federal, state or foreign regulatory agencies or bodies
to conduct their respective businesses as currently conducted and as described in the Registration Statement and the Prospectus
(collectively, “Permits”). Neither the Company nor any of its Subsidiaries is in violation of, or in
default under, any of the Permits or has received any written notice of proceedings relating to the revocation or modification
of, or non-compliance with, any such certificate, authorization or permit, which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, could reasonably be expected to result in a Material Adverse Effect.


 






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(ff)              
The Company and each of its Subsidiaries make and keep accurate books and records and maintain a system of internal accounting
controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; (iv) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible
Business Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus fairly presents
the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines
applicable thereto.


 


(gg)           
The Company and each of its Subsidiaries have established and maintain disclosure controls and procedures (as defined in
Rules 13a-15 and 15d-15 under the Exchange Act), which (i) are designed to ensure that material information relating to the Company,
including its consolidated Subsidiaries, is made known to the Company’s principal executive officer and its principal financial
officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange
Act are being prepared and (ii) are effective in all material respects to perform the functions for which they were established.
Since the end of the Company’s most recent audited fiscal year, there has been no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and no change in the Company’s internal control over
financial reporting, including any corrective actions with regard to significant deficiencies or material weaknesses. The Company
is not aware of any change in its internal control over financial reporting that has occurred during its most recent fiscal quarter
that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.


 


(hh)           
Neither the Company, nor any of its Subsidiaries, nor to the knowledge of the Company, any of its or their respective directors,
officers or controlling persons has taken, directly or indirectly, without giving effect to any actions taken by the Agent, (i)
any action designed to or that might constitute or reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Placement Shares
or (ii) any action designed to or that might constitute or reasonably be expected to cause or result in a violation of Regulation
M under the Exchange Act.


 


(ii)              
Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries (i) are in compliance
in all material respects with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and
orders relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “Environmental Laws”); (ii) have received and are in compliance with all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as described in
the Registration Statement and the Prospectus; and (iii) have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits,
licenses, other approvals or liability as would not, individually or in the aggregate, have a Material Adverse Effect.


 






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(jj)              
To the knowledge of the Company, each material employee benefit plan that is maintained, administered or contributed to
by the Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations. The Company
does not have any material benefit plans within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended.


 


(kk)           
The Company is in compliance with, and there is and has been no failure on the part of the Company and, to the Company’s
knowledge, any of the Company’s directors or officers, in their capacities as such, to comply with, any applicable provision
of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the
“Sarbanes-Oxley Act”), including Section 402 relating to loans.


 


(ll)              
[Reserved].


 


(mm)          
None of the Company, any Subsidiary, affiliate, director, officer or employee thereof or, to the best of the Company’s
knowledge, any agent, representative or other person acting on behalf of the Company or any of its Subsidiaries or affiliates,
is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of any applicable
anti-corruption laws, including the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money,
or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official”
(as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political
office or otherwise took any action (or failed to fully disclose any action) in contravention of the FCPA; and the Company, its
Subsidiaries and each of their respective affiliates have conducted their businesses in compliance with the FCPA and have instituted
and maintain, and will continue to maintain, policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.


 


(nn)           
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all material
respects with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit, investigation or proceeding by
or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries
with respect to the Money Laundering Laws is pending or, to the best of the Company’s knowledge, threatened.


 


(oo)           
Neither the Company nor any of its Subsidiaries, nor, to the Company’s knowledge any director or officer, employee,
agent, affiliate or representative of the Company or any of its Subsidiaries, is currently or is owned or controlled by an individual
or entity that is subject to any sanctions administered or enforced by the United States government (including, without limitation,
the Office of Foreign Assets Control of the United States Department of the Treasury), the United Nations Security Council, the
European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”)
or is located, organized or resident in a country or territory that is the subject or target of Sanctions; and the Company will
not directly or indirectly use the proceeds of the sale of the Shares, or lend, contribute or otherwise make available such proceeds
to any Subsidiary, or any joint venture partner or other person or entity, for the purpose of financing or facilitating the activities
of or business of any person or entity, or in any country or territory, that currently or at the time of such financing or facilitation
is the subject of any Sanctions or in any other manner that will result in a violation by any person or entity (including any person
participating in the transactions contemplated by this Agreement) of any Sanctions. For the past five years, the Company and its
Subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person or
entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.


 






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(pp)           
Except as described in the Registration Statement or the Prospectus, the Company and its Subsidiaries own, possess, license
or have other rights to use, on reasonable terms, all patents, patent applications, trade and service marks, trade and service
mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the “Intellectual Property”) necessary for the conduct of their respective businesses
in all material respects. Except as set forth in the Registration Statement and the Prospectus, (i) there are no rights of third
parties to any such Intellectual Property, including no liens, security interests, or other encumbrances; (ii) to the knowledge
of the Company, no third party has any ownership right in or to any Intellectual Property that is owned or purported to be owned
by the Company or any of its Subsidiaries, other than any co-owner of any patent constituting Intellectual Property who is listed
on the records of the U.S. Patent and Trademark Office and any co-owner of any patent application constituting Intellectual Property
who is named in such patent application; (iii) to the Company’s knowledge, there is no material infringement or misappropriation
by third parties of any such Intellectual Property; (vi) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property, and the Company
is aware of no factual basis for any such claim; (v) such Intellectual Property has not been adjudged by a court of competent jurisdiction
invalid or unenforceable, in whole or in part, there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such Intellectual Property, including interferences, oppositions,
reexaminations, or government proceedings, and the Company is aware of no factual basis for any such claim; (vi) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company infringes, misappropriates,
or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is
aware of no factual basis for any such claim; (vii) neither the Company nor any of its Subsidiaries has received notice of any
claim of infringement, misappropriation or conflict with any asserted rights of others with respect to any of the Company’s
products, proposed products, processes or Intellectual Property; (viii) to the knowledge of the Company, neither the development
nor sale nor any currently proposed use of any of the Company’s product candidates or processes referred to in the Prospectus,
in the current conduct of the business of the Company in the manner and to the extent described in the Prospectus, do currently,
or will upon commercialization, to the knowledge of the Company, infringe any proprietary right or valid patent claim of any third
party; (ix) the Company is not obligated to pay a material royalty, grant a license, or provide other material consideration to
any third party in connection with the Intellectual Property; (x) to the Company’s knowledge, no employee of the Company
is in or has been in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement,
non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former
employer where the basis of such violation relates to such employee’s employment with the Company; (xi) to the Company’s
knowledge, there is no patent or published patent application in the United States or other jurisdiction which contains claims
that dominate or may dominate any Intellectual Property described in the Prospectus as being owned by or licensed to the Company
or that interferes with the issued or pending claims of any such Intellectual Property; (xii) to the Company’s knowledge,
there is no prior art that may render any patent held by the Company invalid or any patent application held by the Company unpatentable;
and (xiii) all prior art of which the Company is aware that may be material to the validity of a U.S. patent or to the patentability
of a U.S. patent application has been disclosed to the U.S. Patent and Trademark Office, and all such prior art has been disclosed
to the patent office of other jurisdictions where required; and (xiv) the Company has taken all reasonable measures to protect
its confidential information and trade secrets and to maintain and safeguard the Intellectual Property, including the execution
of appropriate nondisclosure and confidentiality agreements. All licenses and material agreements to which the Company is a party
relating to the Intellectual Property are in full force and effect and the Company is not in violation of any term of such license.


 






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(qq)           
The Company and each of its Subsidiaries (i) are and have at all times been in material compliance with all laws, statutes,
rules, regulations or guidance applicable to the Company and its Subsidiaries and the ownership, testing, development, manufacture,
packaging, processing, use, distribution, marketing, advertising, labeling, promotion, sale, offer for sale, storage, import, export
or disposal of any pharmaceuticals or biohazardous substances, materials or any other products developed, manufactured or distributed
by the Company (including, without limitation, from the United States Food and Drug Administration (“FDA”),
European Medicines Agency (“EMA”) and any local or other governmental or regulatory authority performing
functions similar to those performed by the FDA or EMA) (collectively, “Applicable Laws”), except as
could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (ii) have not received
any notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the FDA or any other federal,
state or foreign governmental authority having authority over the Company, any of its Subsidiaries or their activities alleging
or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits
and supplements or amendments thereto required by any such Applicable Laws (collectively, the “Governmental Permits”),
(iii) have made all filings with, the appropriate local, or other governmental or regulatory agencies or bodies that are necessary
for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration
Statement and the Prospectus, except where any failures to possess or make the same would not, singularly or in the aggregate,
have a Material Adverse Effect, (iv) possess all material Governmental Permits necessary to conduct their respective businesses
as described in the Registration Statement and the Prospectus, and such Governmental Permits are valid and in full force and effect
and are not in violation of any term of any such Governmental Permits, (v) have filed, obtained, maintained or submitted all material
reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any
Applicable Laws or Governmental Permits and that all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented
by a subsequent submission), and (vi) are not a party to any corporate integrity agreements, monitoring agreements, consent decrees,
settlement orders or similar agreements with or imposed by any governmental authority. All Governmental Permits are valid and in
full force and effect, except where the validity or failure to be in full force and effect would not, singularly or in the aggregate,
have a Material Adverse Effect.


 


(rr)              
There is no legal or governmental proceeding to which the Company or any of its Subsidiaries is a party or of which any
property or assets of the Company or any of its Subsidiaries is the subject, including any proceeding before the FDA, the EMA or
any foreign, local, national or other governmental agency with jurisdiction over the types of products being developed by the Company
that is required to be described in the Registration Statement or the Prospectus and is not described therein, or which, singularly
or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, could reasonably be expected to have a
Material Adverse Effect; and no such proceedings are threatened or contemplated by governmental or regulatory authorities or threatened
by others. The Company and its Subsidiaries (i) have not received notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any governmental authority or third party alleging that any product operation or
activity is in violation of any Applicable Laws or Governmental Permits and have no knowledge that any such governmental authority
or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding and (ii) have
not received notice that any governmental authority has taken, is taking or intends to take action to limit, suspend, modify or
revoke any Governmental Permits and the Company has no knowledge that any such governmental authority is considering such action.


 






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(ss)             
The research, non-clinical pre-clinical studies and clinical studies and tests conducted or being conducted by or on behalf
of the Company or any of its Subsidiaries or in which any of their respective product candidates have participated and, to the
Company’s knowledge, the preclinical studies and clinical trials directed or sponsored by the Company’s collaborators
(collectively, the “Studies”) that are described in, or the results of which are referred to in, the
Registration Statement and the Prospectus were and, if still pending, are being conducted with reasonable care and in all material
respects in accordance with the protocols, procedures and controls pursuant to all Applicable Laws and Governmental Permits and
with standard medical and scientific research procedures; each description of the results of such Studies is accurate and complete
in all material respects and fairly presents the data derived from such Studies, and the Company and its Subsidiaries have no knowledge
of any other research, non-clinical studies or tests the results of which are inconsistent with, or otherwise call into question,
the results described or referred to in the Registration Statement and the Prospectus; the Company and its Subsidiaries have made
all such filings and obtained all such approvals as may be required by the EMA, the FDA or any committee thereof or from any other
United States or foreign government agency with jurisdiction over the types of products being developed by the Company; neither
the Company nor any of its Subsidiaries has received any notice of, or correspondence from, any governmental authority requiring
the termination, suspension or modification of any Study; and the Company and its Subsidiaries have each operated and currently
are in compliance in all material respects with all applicable rules, regulations and policies of all governmental authorities.
To the Company’s knowledge, the manufacturing facilities and operations of its suppliers are operated in compliance in all
material respects with all Applicable Laws and Governmental Permits.


 


(tt)              
The Company acknowledges and agrees that the Agent has informed the Company that the Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Shares for its own account while this Agreement is in effect;
provided, that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent
the Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal”
or in a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales
by the Agent, except as may be otherwise agreed by the Company and the Agent.


 


(uu)           
The Company is not a party to any agreement with an agent or underwriter for any other “at the market” or continuous
equity transaction.


 


(vv)           
Neither the Company nor any of the Subsidiaries (i) is required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls
or is a “person associated with a member” or “associated person of a member” (within the meaning set forth
in the FINRA Manual). All of the information (including, but not limited to, information regarding affiliations, security ownership
and trading activity) provided to the Agent or its counsel by the Company, its officers and directors and the holders of any securities
(debt or equity) or warrants, options or rights to acquire any securities of the Company in connection with the filing to be made
and other supplemental information to be provided to FINRA pursuant to FINRA Rule 5110 in connection with the transactions contemplated
by this Agreement is true, complete and correct.


 


(ww)        
The Company is not a shell company (as defined in Rule 405) and has not been a shell company for at least 12 calendar months
previously.


 


(xx)           
Each of the independent directors (or independent director nominees, once appointed, if applicable) named in the Registration
Statement and Prospectus satisfies the independence standards established by Nasdaq and, with respect to members of the Company’s
audit committee, other than with respect to any non-independent director identified in the Registration Statement or Prospectus,
the enhanced independence standards contained in Rule 10A-3(b)(1) promulgated by the Commission under the Exchange Act.


 






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(yy)           
Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A of
the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus (i) was so included
by the Company in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions, estimates
and other applicable facts and circumstances and (ii) as required, is accompanied by meaningful cautionary statements identifying
those factors that could cause actual results to differ materially from those in such forward-looking statement. No such statement
was made with the knowledge of a director or senior manager of the Company that was false or misleading.


 


(zz)            
The Company is not in or subject to a bankruptcy or insolvency proceeding in any jurisdiction.


 


(aaa)         
Except as would not have a Material Adverse Effect, neither the Company nor any of its Subsidiaries has breached and is
currently in breach of any provision of any license, contract or other agreement governing the use by the Company or its Subsidiaries
of Intellectual Property owned by third parties (collectively, the “Licenses”) and no third party has
alleged any such breach and the Company is unaware of any facts that would form a reasonable basis for such a claim. To the Company’s
knowledge, no other party to the Licenses has breached or is currently in breach of any provision of the Licenses. Each of the
Licenses is in full force and effect and constitutes a valid and binding agreement between the parties thereto, enforceable in
accordance with its terms, and there has not occurred any breach or default under any such Licenses or any event that, with the
giving of notice or lapse of time, would constitute a breach or default thereunder. Except as would not have a Material Adverse
Effect, neither the Company nor any of its Subsidiaries has been and is currently involved in any disputes regarding the Licenses.
To the Company’s knowledge, all patents licensed to the Company pursuant to the Licenses are valid, enforceable and being
duly maintained. To the Company’s knowledge, any patent applications licensed to the Company pursuant to the Licenses are
being duly prosecuted.


 


Any certificate signed
by any officer of the Company and delivered to the Agent or its counsel in connection with the offering of the Placement Shares
shall be deemed a representation and warranty by the Company, as to matters covered thereby, to the Agent.


 


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


 


(a)               
Registration Statement Amendments. After the date of this Agreement and during any period in which the Prospectus
relating to any Placement Shares is required to be delivered by the Agent under the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act or a similar rule); (i) the Company will
notify the Agent promptly of the time when any subsequent amendment to the Registration Statement, other than Incorporated Documents,
has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus, other than Incorporated
Documents, has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or
Prospectus or for additional information; (ii) the Company will prepare and file with the Commission, promptly upon the Agent’s
request, any amendments or supplements to the Registration Statement or Prospectus that, in the Agent’s reasonable opinion,
may be necessary or advisable in connection with the distribution of the Placement Shares by the Agent (provided, however, that
the failure of the Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or affect
the Agent’s right to rely on the representations and warranties made by the Company in this Agreement and provided, further,
that the only remedy the Agent shall have with respect to the failure by the Company to make such filing (but without limiting
the Agent’s rights under Section 9 hereof) will be to cease making sales under this Agreement until such amendment
or supplement is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus,
other than Incorporated Documents, relating to the Placement Shares or a security convertible into or exchangeable or exercisable
for the Placement Shares unless a copy thereof has been submitted to the Agent within a reasonable period of time before the filing
and the Agent has not reasonably objected thereto (provided, however, that the failure of the Agent to make such objection shall
not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations
and warranties made by the Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect
to the Company’s making such filing notwithstanding the Agent’s objection (but without limiting the Agent’s rights
under Section 9 hereof) will be to cease making sales under this Agreement) and the Company will furnish to the Agent at
the time of filing thereof a copy of any Incorporated Document, except for those documents available via EDGAR; and (iv) the Company
will cause each amendment or supplement to the Prospectus, other than Incorporated Documents, to be filed with the Commission as
required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act and, in the case of any Incorporated Document,
to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed.


 






    17


    


    

 


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


 


(c)               
Delivery of Prospectus; Subsequent Changes. During any period in which the Prospectus relating to the Placement Shares
is required to be delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares (including
in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Securities Act Rules or a similar rule), the
Company will comply in all material respects with all requirements imposed upon it by the Securities Act, as from time to time
in force, and will file on or before their respective due dates (taking into account any extensions available under the Exchange
Act) all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event occurs
as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading,
or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities
Act, the Company will promptly notify the Agent to suspend the offering of Placement Shares during such period and the Company
will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance. If the Company has omitted any information from the Registration Statement pursuant
to Rule 430B under the Securities Act, it will use its best efforts to comply with the provisions thereof and make all requisite
filings with the Commission pursuant to said Rule 430B and to notify the Agent promptly of all such filings if not available on
EDGAR.


 


(d)               
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required
to be delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act or a similar rule), the Company
will use its commercially reasonable efforts to cause the Placement Shares to be listed on Nasdaq. The Company will timely file
with Nasdaq all material documents and notices required by Nasdaq of companies that have or will issue securities that are traded
on Nasdaq.


 






    18


    


    

 


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


 


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


 


(g)               
Expenses. The Company will pay all expenses incident to the performance of its obligations hereunder, including,
but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration Statement and each amendment
and supplement thereto, of the Prospectus and of each amendment and supplement thereto and of this Agreement and such other documents
as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (ii) the preparation,
issuance, sale and delivery of the Placement Shares and any taxes due or payable in connection therewith, (iii) the qualification
of the Placement Shares under securities laws in accordance with the provisions of Section 7(w) of this Agreement,
including filing fees (provided, however, that any fees or disbursements of counsel for the Agent in connection therewith shall
be paid by the Agent except as set forth in clauses (vii) and (viii) below), (iv) the printing and delivery to the Agent and its
counsel of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement, and (v) the fees and expenses
incurred in connection with the listing or qualification of the Placement Shares for trading on Nasdaq, (vi) the filing fees and
expenses, if any, owed to the Commission or FINRA and the fees and expenses of any transfer agent or registrar for the Shares.


 


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


 


(i)                
Notice of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly,
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Shares (other than the Placement Shares
offered pursuant to this Agreement) or securities convertible into or exchangeable or exercisable for Shares, warrants or any rights
to purchase or acquire Shares during the period beginning on the fifth Trading Day immediately prior to the date on which any Placement
Notice is delivered to Agent hereunder and ending on the second Trading Day immediately following the final Settlement Date with
respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended
prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will
not directly or indirectly in any other “at the market offering” or continuous equity transaction offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Shares (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable or exercisable for Shares, warrants or any rights to purchase
or acquire, Shares prior to the later of the termination of this Agreement and the sixtieth day immediately following the final
Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice; provided, however, that
such restrictions will not be required in connection with the Company’s issuance or sale of (i) Shares, options to purchase
Shares, other securities under the Company’s existing equity incentive plans, or Shares issuable upon the exercise of options
or vesting of other securities, pursuant to any employee or director share option or benefits plan, share ownership plan or dividend
reinvestment plan (but not Shares subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether
now in effect or hereafter implemented, (ii) Shares issuable upon conversion of securities or the exercise of warrants, options
or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to
the Agent and (iii) Shares or securities convertible into or exchangeable for Shares as consideration for mergers, acquisitions,
other business combinations or strategic alliances occurring after the date of this Agreement which are not issued for capital
raising purposes.


 






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


 


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


 


(l)                
Required Filings Relating to Placement of Placement Shares. The Company agrees that on or prior to such dates as
the Securities Act shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph
of Rule 424(b) under the Securities Act, which prospectus supplement will set forth, within the relevant period, the number or
amount of Placement Shares sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company
to the Agent with respect to such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to
each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market;
provided, that, unless a prospectus supplement containing such information is required to be filed under the Securities
Act, the requirement of this Section 7(l) may be satisfied by Company’s inclusion in the Company’s Form 10-K,
Form 10-Q or Form 8-K, as applicable, of the number or amount of Placement Shares sold through the Agent, the Net Proceeds to the
Company and the compensation payable by the Company to the Agent with respect to such Placement Shares during the relevant period.


 


(m)             
Representation Dates; Certificate. On or prior to the date on which the Company first delivers a Placement Notice
pursuant to this agreement (the “First Placement Notice Date”) and each time the Company:


 


(i)                
amends or supplements the Registration Statement or the Prospectus relating to the Placement Shares (other than a prospectus
supplement filed in accordance with Section 7(l) of this Agreement) by means of a post-effective amendment, sticker or supplement
but not by means of incorporation of document(s) by reference into the Registration Statement or the Prospectus relating to the
Placement Shares;


 






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(ii)              
files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information
or a material amendment to the previously filed Form 10-K);


 


(iii)            
files a quarterly report on Form 10-Q under the Exchange Act containing financial statements, supporting schedules or other
financial data incorporated by reference into the Registration Statement; or


 


(iv)             
files a current report on Form 8-K containing amended financial information under the Exchange Act incorporated by reference
into the Registration Statement (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall
be a “Representation Date”), the Company shall furnish the Agent (but in the case of clause (iv) above
only if (1) a Placement Notice is pending or in effect and (2) the Agent requests such certificate within three Business Days after
the filing of such Form 8-K with the Commission) with a certificate, in the form attached hereto as Exhibit 7(m)
(modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented), within two
Trading Days of any Representation Date. The requirement to provide a certificate under this Section 7(m) shall be waived
for any Representation Date occurring at a time at which no Placement Notice is pending or in effect, which waiver shall continue
until the earlier to occur of (1) the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall
be considered a Representation Date) and (2) the next occurring Representation Date; provided, however, that such
waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K (including any Form
10-K containing amended financial information or a material amendment to the previously filed Form 10-K). Notwithstanding the foregoing,
if the Company subsequently decides to sell Placement Shares following a Representation Date on which the Company relied on the
waiver referred to in the previous sentence and did not provide the Agent with a certificate under this Section 7(m), then
before the Company delivers a Placement Notice or the Agent sells any Placement Shares pursuant thereto, the Company shall provide
the Agent with a certificate, in the form attached hereto as Exhibit 7(m), dated the date of such Placement
Notice. Within two Trading Days of each Representation Date, the Company shall have furnished to the Agent such further information,
certificates and documents as the Agent may reasonably request.


 


(n)               
Legal Opinions. On or prior to the First Placement Notice Date and on any date which the Company is obligated to
deliver a certificate pursuant to Section 7(m) for which no waiver is applicable, the Company shall cause to be furnished
to the Agent the written opinion and negative assurance letter of Dentons US LLP, counsel to the Company (“Company
Counsel”), in form and substance reasonably satisfactory to the Agent and its counsel, dated the date that the opinion
and negative assurance letter, as applicable, are required to be delivered, modified, as necessary, to relate to the Registration
Statement and the Prospectus as then amended or supplemented; provided, however, the Company shall be required to furnish to Agent
no more than one negative assurance letter and one opinion hereunder per calendar quarter and provided, further,
that in lieu of such opinion and negative assurance letter for subsequent Representation Dates, each Company Counsel may furnish
the Agent with a letter to the effect that the Agent may rely on a prior opinion or negative assurance letter, as applicable, delivered
by such counsel under this Section 7(n) to the same extent as if it were dated the date of such letter (except that statements
in such prior opinion or negative assurance letter shall be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented at such Representation Date).


 


(o)               
Intellectual Property Opinion. On or prior to the First Placement Notice Date and on any date which the Company is
obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable, the Company shall cause to
be furnished to the Agent the written opinion of Baker & Hostetler LLP, intellectual property counsel to the Company, with
respect to intellectual property matters, or such other intellectual property counsel reasonably satisfactory to the Agent (“Intellectual
Property Counsel”), in form and substance reasonably satisfactory to the Agent and its counsel, dated the date that
the opinion letter is required to be delivered, modified, as necessary, to relate to the Registration Statement and the Prospectus
as then amended or supplemented; provided, however, that in lieu of such written opinion for subsequent Representation
Dates, Intellectual Property Counsel may furnish the Agent with a letter to the effect that the Agent may rely on a prior opinion
letter delivered by such counsel under this Section 7(o) to the same extent as if it were dated the date of such opinion
letter (except that statements in such prior opinion letter shall be deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented at such Representation Date).


 






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(p)               
Comfort Letter. On or prior to the First Placement Notice Date and on any date which the Company is obligated to
deliver a certificate pursuant to Section 7(m) for which no waiver is applicable, the Company shall cause its independent
registered public accounting firm (and any other independent accountants whose report is included in the Registration Statement
or the Prospectus) to furnish the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter
is delivered, which shall meet the requirements set forth in this Section 7(p); provided, that if reasonably requested
by the Agent, the Company shall cause a Comfort Letter to be furnished to the Agent within 10 Trading Days of the occurrence of
any material transaction or event that necessitates the filing of additional, pro forma, amended or revised financial statements
(including any restatement of previously issued financial statements). Each Comfort Letter shall be in form and substance reasonably
satisfactory to the Agent and each Comfort Letter from the Company’s independent registered public accounting firm shall
(i) confirm that they are an independent registered public accounting firm within the meaning of the Securities Act and the PCAOB,
(ii) state, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters
ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings
(the first such letter, the “Initial Comfort Letter”) and (iii) update the Initial Comfort Letter with
any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary
to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.


 


(q)               
Market Activities. The Company will not, directly or indirectly, and will cause its officers, directors and Subsidiaries
not to (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of Shares or (ii) sell,
bid for, or purchase Shares in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement
Shares other than the Agent; provided, however, that the Company may bid for and purchase Shares in accordance with
Rule 10b-18 under the Exchange Act.


 


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


 


(s)                
Securities Act and Exchange Act. The Company will use its best efforts to comply with all applicable requirements
imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the sales
of, or dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.


 


(t)                
No Offer to Sell. Other than a free writing prospectus (as defined in Rule 405) approved in advance by the Company
and the Agent, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity
as agent) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405), required
to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Shares hereunder.


 






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


 


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


 


(w)             
[Reserved.]


 


(x)               
Renewal of Registration Statement. If, immediately prior to the third anniversary of the initial effective date of
the Registration Statement (the “Renewal Date”), any of the Placement Shares remain unsold and this Agreement
has not been terminated, the Company will, prior to the Renewal Date, file a new shelf registration statement or, if applicable,
an automatic shelf registration statement relating to the Shares that may be offered and sold pursuant to this Agreement (which
shall include a prospectus reflecting the number or amount of Placement Shares that may be offered and sold pursuant to this Agreement),
in a form satisfactory to the Agent and its counsel, and, if such registration statement is not an automatic shelf registration
statement, will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal
Date. The Company will take all other reasonable actions necessary or appropriate to permit the public offer and sale of the Placement
Shares to continue as contemplated in the expired registration statement and this Agreement. From and after the effective date
thereof, references herein to the “Registration Statement” shall include such new shelf registration statement or such
new automatic shelf registration statement, as the case may be.


 






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(y)               
General Instruction I.B.6. of Form S-3. If, from and after the date of this Agreement, the Company is no longer eligible
to use Form S-3 (pursuant to General Instruction I.B.1.) at the time it files with the Commission an annual report on Form 10-K
or any post-effective amendment to the Registration Statement, then it shall promptly notify the Agent and, within two Business
Days after the date of filing of such annual report on Form 10-K or amendment to the Registration Statement, the Company shall
file a new prospectus supplement with the Commission reflecting the number of Shares available to be offered and sold by the Company
under this Agreement pursuant to General Instruction I.B.6. of Form S-3; provided, however, that the Company may
delay the filing of any such prospectus supplement for up to 30 days if, in the reasonable judgment of the Company, it is in the
best interest of the Company to do so, provided that no Placement Notice is in effect or pending during such time. Until such time
as the Company shall have corrected such misstatement or omission or effected such compliance, the Company shall not notify the
Agent to resume the offering of Placement Shares.


 


(z)               
Tax Indemnity. The Company will indemnify and hold harmless the Agent against any documentary, stamp or similar issue
tax, including any interest and penalties, on the issue and sale of the Placement Shares.


 


(aa)            
Transfer Agent. The Company has engaged and will maintain, at its sole expense, a transfer agent and registrar for
the Shares.


 


8.                  
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will
be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the
due performance in all material respects by the Company of its obligations hereunder, to the completion by the Agent of a due diligence
review satisfactory to the Agent in its reasonable judgment, and to the continuing satisfaction (or waiver by the Agent in its
sole discretion) in all material respects of the following additional conditions:


 


(a)               
Registration Statement Effective. The Registration Statement shall be effective and shall be available for all offers
and sales of Placement Shares (i) that have been issued pursuant to all prior Placement Notices and (ii) that will be issued pursuant
to any Placement Notice.


 


(b)               
Prospectus Supplement. The Company shall have filed with the Commission the Prospectus Supplement pursuant to Rule
424(b) under the Securities Act not later than the Commission’s close of business on the second Business Day following the
date of this Agreement.


 


(c)               
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company
or any of its Subsidiaries of any request for additional information from the Commission or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement, the response to which would require any post-effective
amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose; (iii) receipt by the Company or any of its Subsidiaries of any notification with respect to
the suspension of the qualification or exemption from qualification of any of the Placement Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that makes any material
statement made in the Registration Statement or the Prospectus or any material Incorporated Document untrue in any material respect
or that requires the making of any material changes in the Registration Statement, the Prospectus or Incorporated Documents so
that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the
Prospectus, so that it will not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not
misleading.


 






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


 


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


 


(f)                
Company Counsel Legal Opinions. The Agent shall have received the opinions and negative assurance letters, as applicable,
of Company Counsel and Intellectual Property Counsel required to be delivered pursuant to Section 7(n) and Section 7(o),
as applicable, on or before the date on which such delivery of such opinions and negative assurance letters are required pursuant
to Section 7(n) and Section 7(o), as applicable.


 


(g)               
Agent’s Counsel Legal Opinion. The Agent shall have received from Goodwin Procter LLP, counsel for the Agent,
such opinion or opinions, on or before the date on which the delivery of the Company Counsel legal opinion is required pursuant
to Section 7(n), with respect to such matters as the Agent may reasonably require, and the Company shall have furnished
to such counsel such documents as they may request to enable them to pass upon such matters.


 


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


 


(i)                
Representation Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section
7(m) on or before the date on which delivery of such certificate is required pursuant to Section 7(m).


 


(j)                
Secretary’s Certificate. On or prior to the First Placement Notice Date, the Agent shall have received a certificate,
signed on behalf of the Company by its Secretary of the Company and attested to by an executive officer of the Company, dated as
of such date and in form and substance satisfactory to the Agent and its counsel, certifying as to (i) the certificate of incorporation
of the Company, (ii) the resolutions of the board of directors of the Company or duly authorized committee thereof authorizing
the execution, delivery and performance of this Agreement and the issuance and sale of the Placement Shares and (iii) the incumbency
of the officers of the Company duly authorized to execute this Agreement and the other documents contemplated by this Agreement
(including each of the officers set forth on Schedule 2).


 






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(k)               
No Suspension. The Shares are duly listed, and admitted and authorized for trading, subject to official notice of
issuance, on Nasdaq. Trading in the Shares shall not have been suspended on, and the Shares shall not have been delisted from,
Nasdaq.


 


(l)                
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m),
the Company shall have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents
as the Agent may have reasonably requested. All such information, opinions, certificates, letters and other documents shall have
been in compliance with the provisions hereof. The Company shall have furnish the Agent with complied copies of such opinions,
certificates, letters and other documents as the Agent may have reasonably requested.


 


(m)             
Securities Act Filings Made. All filings with the Commission required by Rule 424(b) or Rule 433 under the Securities
Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time
period prescribed for such filing by Rule 424(b) (without reliance on Rule 424(b)(8) of the Securities Act) or Rule 433, as applicable.


 


(n)               
Approval for Listing. The Placement Shares shall either have been (i) approved for listing on Nasdaq, subject only
to notice of issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on Nasdaq at, or
prior to, the First Placement Notice Date and Nasdaq shall have reviewed such application and not provided any objections thereto.


 


(o)               
FINRA. FINRA shall have raised no objection to the terms of the offering contemplated hereby and the amount of compensation
allowable or payable to the Agent as described in the Prospectus.


 


(p)               
No Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement
pursuant to Section 11(a).


 


9.                  
Indemnification and Contribution.


 


(a)               
Company Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective
partners, members, directors, officers, employees and agents, and each person, if any, who (i) controls the Agent within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with
the Agent, in each case from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited
to, any and all investigative, legal and other expenses) reasonably incurred in connection with, and any and all amounts paid in
settlement (in accordance with this Section 9), any action, suit, investigation or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any third party (including, without limitation, any governmental
or self-regulatory authority, or otherwise, or any claim asserted or threatened), as and when incurred, to which the Agent, or
any such other person may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based,
directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (or any amendment or supplement to the Registration Statement or the Prospectus) or in any free writing
prospectus or in any application or other document executed by or on behalf of the Company or based on written information furnished
by or on behalf of the Company filed in any jurisdiction in order to qualify the Shares under the securities laws thereof or filed
with the Commission, (y) the omission or alleged omission to state in any such document a material fact required to be stated therein
or necessary to make the statements therein (solely with respect to the Prospectus, in light of the circumstances under which they
were made) not misleading or (z) any breach by any of the indemnifying parties of any of their respective representations, warranties
or agreements contained in this Agreement; provided, however, that this indemnity agreement shall not apply to the
extent that such loss, claim, liability, expense or damage arises from the sale of the Placement Shares pursuant to this Agreement
and is caused, directly or indirectly, by an untrue statement or omission, or alleged untrue statement or omission, made in reliance
upon and in conformity with the Agent’s Information.


 






    26


    


    

 


(b)               
Agent Indemnification. The Agent agrees to indemnify and hold harmless the Company and its directors and each officer
of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with
the Company against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 9(a),
as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendments thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity
with the Agent’s Information.


 


(c)               
Procedure. Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying
party or parties under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing
a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from
(i) any liability that it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability
that it may have to any indemnified party under the foregoing provision of this Section 9 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is
brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have the
right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense
of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available
to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified party to assume
the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly after the indemnifying party receives a written invoice relating
to such fees, disbursements and other charges in reasonable detail. An indemnifying party will not, in any event, be liable for
any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding relating to the matters contemplated by this Section 9 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent (1) includes an unconditional release of each indemnified party, in form
and substance reasonably satisfactory to such indemnified party, from all liability arising out of such claim, action or proceeding
and (2) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified
party.


 






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(d)               
Settlement Without Consent if Failure to Reimburse.  If an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for reasonable fees and expenses of counsel for which it is entitled to be reimbursed
under this Section 9, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated
by Section 9(a) effected without its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.


 


(e)               
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification
provided for in the foregoing paragraphs of this Section 9 is applicable in accordance with its terms but for any reason
is held to be unavailable or insufficient from the Company or the Agent, the Company and the Agent will contribute to the total
losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit, investigation or proceeding or any claim asserted) to
which the Company and the Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Agent on the other hand. The relative benefits received by the Company on the one hand and
the Agent on the other hand shall be deemed to be in the same proportion as the total Net Proceeds from the sale of the Placement
Shares (before deducting expenses) received by the Company bear to the total compensation received by the Agent from the sale of
Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted
by Applicable Law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative
benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the Agent, on the
other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action,
suit, investigation or proceeding in respect thereof, as well as any other relevant equitable considerations with respect to such
offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the
Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Agent agree that it would not be just and equitable if contributions pursuant to this
Section 9(e) were to be determined by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, liability, expense or damage, or action, suit, investigation or proceeding in respect thereof, referred to above
in this Section 9(e) shall be deemed to include, for the purpose of this Section 9(e), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any such action, suit, investigation,
proceeding or claim to the extent consistent with this Section 9. Notwithstanding the foregoing provisions of this Section
9(e), the Agent shall not be required to contribute any amount in excess of the commissions received by it under this Agreement
and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
9(e), any person who controls a party to this Agreement within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, any affiliates of the Agent, any partners, members, directors, officers, employees and agents of the Agent
and each person that is controlled by or under common control with the Agent will have the same rights to contribution as that
party, and each officer of the Company who signed the Registration Statement will have the same rights to contribution as the Company,
subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution may be made under this Section 9(e), will
notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party
or parties from whom contribution may be sought from any other obligation it or they may have under this Section 9(e) except
to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party
from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 9(c) hereof
or pursuant to Section 9(d) hereof, no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 9(c) hereof.


 






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10.              
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section
9 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling
persons, or the Company (or any of their respective officers, directors, employees or controlling persons), (ii) delivery and acceptance
of the Placement Shares and payment therefor or (iii) any termination of this Agreement.


 


11.              
Termination.


 


(a)               
The Agent shall have the right, by giving notice as hereinafter specified, at any time to terminate this Agreement if (i)
any Material Adverse Effect has occurred that, in the judgment of the Agent, may materially impair the ability of the Agent to
sell the Placement Shares hereunder, (ii) the Company shall have failed, refused or been unable to perform any agreement on its
part to be performed hereunder; provided, however, in the case of any failure of the Company to deliver (or cause
another person to deliver) any certification, opinion or letter required under Section 7(m), Section 7(n), Section
7(o) or Section 7(p), the Agent’s right to terminate shall not arise unless such failure to deliver (or cause
to be delivered) continues for more than 15 calendar days from the date such delivery was required, (iii) any other condition of
the Agent’s obligations hereunder is not fulfilled, (iv) any suspension or limitation of trading in the Placement Shares
or in securities generally on Nasdaq shall have occurred, (v) a general banking moratorium shall have been declared by any of United
States federal or New York authorities, or (vi) there shall have occurred any outbreak or escalation of national or international
hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial
change or development involving a prospective substantial change in United States or international political, financial or economic
conditions that, in the judgment of the Agent, may materially impair the ability of the Agent to sell the Placement Shares hereunder
or to enforce contracts for the sale of securities. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 7(g), Section 9, Section 10, Section 16, and Section
17 hereof shall remain in full force and effect notwithstanding such termination. If the Agent elects to terminate this Agreement
as provided in this Section 11(a), the Agent shall provide the required notice as specified in Section 12.


 


(b)               
The Company shall have the right, by giving 10 days’ prior notice as hereinafter specified, to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16, and Section 17 hereof shall remain in full force and effect notwithstanding such termination.


 






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(c)               
The Agent shall have the right, by giving 10 days’ prior notice as hereinafter specified, to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16, and Section 17 hereof shall remain in full force and effect notwithstanding such termination.


 


(d)               
Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance
and sale of all of the Placement Shares through the Agent on the terms and subject to the conditions set forth herein; provided
that the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16, and Section
17 hereof shall remain in full force and effect notwithstanding such termination.


 


(e)               
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c),
or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination
by mutual agreement shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section
11(f), Section 16, and Section 17 shall remain in full force and effect.


 


(f)                
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or
the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares,
such Placement Shares shall settle in accordance with the provisions of this Agreement. Upon termination of this Agreement, the
Company shall not be required to pay to the Agent any discount or commission with respect to any Placement Shares not otherwise
sold by the Agent under this Agreement; provided, however, that the Company shall remain obligated to reimburse the Agent’s
expenses pursuant to Section 7(g).


 


12.              
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to the Agent, shall
be delivered to:


 


Stifel, Nicolaus & Company,
Incorporated


787 Seventh Avenue


New York, New York
10019


Attention: Equity Capital Markets




with copies (which shall not constitute notice) to:


 


Goodwin Procter LLP


The New York Times
Building


620 Eighth Avenue


New York, New York
10018


Attention: Thomas S. Levato,
Esq.




and if to the Company, shall be delivered to:


 


Arcturus Therapeutics Holdings
Inc.


10628 Science Center Dr.


Suite 200


San Diego, California 92121


Attention: Chief Executive Officer


 






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with copies (which shall not constitute
notice) to:


 


Dentons US LLP


4655 Executive Drive

Suite 700

New York, New York 10178


Attention: Jeffrey A. Baumel, Esq.


 


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


 


An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 12 if sent to
the electronic mail address specified by the receiving party in Section 12. Electronic Notice shall be deemed received at
the time the party sending Electronic Notice receives actual acknowledgment of receipt from the person whom the notice is sent,
other than via auto-reply. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper,
in a nonelectronic form (“Nonelectronic Notice”), which shall be sent to the requesting party within
10 days of receipt of the written request for Nonelectronic Notice.


 


13.              
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent
and their respective successors and the affiliates, controlling persons, officers, directors and other persons referred to in Section
9 hereof. References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted
assigns of each such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the
parties hereto, the persons referred to in the preceding sentence and their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither
party may assign its rights or obligations under this Agreement without the prior written consent of the other party; provided,
however, that the Agent may assign its rights and obligations hereunder to an affiliate of the Agent without obtaining the
Company’s consent, so long as such affiliate is a registered broker-dealer.


 


14.              
Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this
Agreement shall be adjusted to take into account any share split, share dividend or similar event effected with respect to the
Shares.


 


15.              
Entire Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules (as amended pursuant to
this Agreement) and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes the entire agreement and
supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with
regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and the Agent; provided, however, that Schedule 2 of this Agreement may be
amended by either party from time to time by sending a notice containing a revised Schedule 2 to the other party
in the manner provided in Section 12 and, upon such amendment, all references herein to Schedule 2 shall automatically
be deemed to refer to such amended Schedule 2. In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction,
then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions
hereof shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver by a party shall
arise in the absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power, or privilege hereunder.


 






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16.              
GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


17.              
Consent to Jurisdiction. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection with
any of the transactions contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum, or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy (certified
or registered mail, return receipt requested) to such party at the address in effect for notices under Section 12 of this
Agreement and agrees that such service shall constitute good and sufficient notice of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.


 


18.              
[Reserved].


 


19.              
[Reserved].


 


20.              
Construction.


 


(a)               
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof.


 


(b)               
Words defined in the singular shall have a comparable meaning when used in the plural, and vice versa.


 


(c)               
The words “hereof,” “hereto,” “herein” and “hereunder” and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.


 






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(d)               
Wherever the word “include,” “includes” or “including” is used in this Agreement, it
shall be deemed to be followed by the words “without limitation.”


 


(e)               
References herein to any gender shall include each other gender.


 


(f)                
References herein to any law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority
shall be deemed to refer to such law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority
as amended, reenacted, supplemented or superseded in whole or in part and in effect from time to time and also to all rules and
regulations promulgated thereunder.


 


21.              
Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior
written consent of the Agent, which consent shall not be unreasonably withheld, conditioned or delayed, and the Agent represents,
warrants and agrees that, unless it obtains the prior written consent of the Company, which consent shall not be unreasonably withheld,
conditioned or delayed, it has not made and will not make any offer relating to the Placement Shares that would constitute an issuer
free writing prospectus, or that would otherwise constitute a free writing prospectus (as defined in Rule 405), required to be
filed with the Commission. Any such free writing prospectus consented to by the Agent or by the Company, as the case may be, is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants
that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an issuer free writing prospectus,
and that it has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely filing with the Commission where required, legending and record keeping.


 


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


 


(a)               
the Agent has been retained to act as sales agent in connection with the sale of the Shares, the Agent has acted at arms’
length and no fiduciary or advisory relationship between the Company or any of its respective affiliates, shareholders (or other
equity holders), creditors or employees or any other party, on the one hand, and the Agent, on the other hand, has been or will
be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Agent has advised
or is advising the Company on other matters and the Agent has no duties or obligations to the Company with respect to the transactions
contemplated by this Agreement except the obligations expressly set forth herein;


 


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


 


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


 


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


 


(e)               
the Company waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for
breach of fiduciary duty or alleged breach of fiduciary duty in connection with the transactions contemplated by this Agreement
and agrees that the Agent and its affiliates shall have no liability (whether direct or indirect) to the Company in respect of
such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including shareholders
(or other equity holders), creditors or employees of the Company.


 






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23.              
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other
may be made by facsimile or electronic transmission.


 


24.              
Use of Information.The Agent may not provide any information gained in connection with this Agreement and the
transactions contemplated by this Agreement, including due diligence, to any third party other than its legal counsel advising
it on this Agreement unless expressly approved by the Company in writing.


 


25.              
Agent’s Information; Knowledge of the Company. As used in this Agreement, “Agent’s Information”
means solely the following information in the Registration Statement and the Prospectus: the last sentence of the last paragrpah
under the heading “Plan of Distribution” in the Prospectus Supplement.


 


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


 


All references in this
Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers”
or similar materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Agent outside
of the United States.


 


[Remainder of Page Intentionally Blank]


 






    34


    


    

 


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


 





	 	Very truly yours,
	 	 	 
	 	ARCTURUS THERAPEUTICS HOLDINGS INC.
	 	 	 
	 	By:	/s/ Joseph E. Payne
	 	Name:	Joseph E. Payne
	 	Title:	Chief Executive Officer
	 	 	 
	 	ACCEPTED AS OF THE DATE
	 	FIRST-ABOVE WRITTEN:
	 	 	 
	 	STIFEL, NICOLAUS & COMPANY, INCORPORATED
	 	 	 
	 	By:	/s/ Daniel J. Covatta
	 	Name:	Daniel J. Covatta
	 	Title:	Managing Director