Exhibit 10.1


 


Execution
Version


 


COGNITION
THERAPEUTICS, INC.

Shares of Common Stock


(par value $0.001 per share)


 


Controlled Equity OfferingSM


 


Sales Agreement


 


December 23, 2022


 


Cantor Fitzgerald & Co.


499 Park Avenue


New York, NY 10022


 


B. Riley Securities, Inc.


299 Park Avenue, 21st Floor


New York, NY 10171


 


Ladies and Gentlemen:


 


Cognition Therapeutics, Inc.,
a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with Cantor Fitzgerald & Co. (“Cantor”) and B. Riley Securities, Inc. (“B. Riley”);
individually each of Cantor and B. Riley, an “Agent” and together, the “Agents”),
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 to or through the Agents, as sales agent or principal, shares of common stock (the
 “Placement Shares”) of the Company, par value $0.001 per share (the “Common Stock”);
provided, however, that in no event shall the Company issue or sell through the Agents such number or dollar amount of Placement
Shares that would (a) exceed the number or dollar amount of shares of Common Stock registered on the effective Registration Statement
(as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued shares of Common
Stock (less shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise
reserved from the Company’s authorized capital stock), (c) exceed the number or dollar amount of shares of Common Stock permitted
to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount
of shares of Common Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), (c) and
(d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree
that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this
Agreement shall be the sole responsibility of the Company and that the Agents shall have no obligation in connection with such compliance.
The offer and sale of Placement Shares through the Agents will be effected pursuant to the Registration Statement (as defined below) filed
by the Company and which will be declared effective by the Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Common Stock.


 






     


     


    

 


The Company has filed or will
file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), and
the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form S-3, including a base prospectus, relating to certain securities, including the Placement Shares to be issued from
time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with
the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the
registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the
Company (the “Prospectus Supplement”). The Company will furnish to the Agents, for use by the Agents, copies
of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement
Shares to be issued from time to time by the Company. Except where the context otherwise requires, such registration statement(s), including
all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as
defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed
to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, and any one or more additional
effective registration statements on Form S-3 from time to time that will contain a base prospectus and related prospectus or prospectus
supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares, is herein called the “Registration
Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included
in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus
or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under
the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called
the “Prospectus.”


 


Any reference herein to the
Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and
include the documents, if any, incorporated by reference therein (the “Incorporated Documents”), including,
unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any 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 date 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 to any amendment or supplement thereto shall be deemed to include the most
recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive
Data Electronic Application system when used by the Commission (collectively, “EDGAR”).


 






     


     


    

 


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


 


3.            Sale
of Placement Shares by the Designated Agent. Subject to the provisions of Section 5(a), the Designated 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 (the “Exchange”),
to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The
Designated Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to the Designated Agent pursuant to Section 2 with respect to such sales,
and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Designated Agent (as
set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement
Notice, the Designated Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering”
as defined in Rule 415(a)(4) of the Securities Act Regulations. “Trading Day” means any day on which
Common Stock is traded on the Exchange.


 


4.            Suspension
of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to
each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend
any sale of Placement Shares (a “Suspension”); provided, however, that such Suspension shall not
affect or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice.
While a Suspension is in effect any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery
of certificates, opinions, or comfort letters to the Agents, shall be waived. Each of the parties agrees that no such notice under this
Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3
hereto, as such Schedule may be amended from time to time. Notwithstanding any other provision of this Agreement, during any period in
which the Company is in possession of material non-public information, the Company and the Agents agree that (i) no sale of Placement
Shares will take place, (ii) the Company shall not request the sale of any Placement Shares, and (iii) the Agents shall not
be obligated to sell or offer to sell any Placement Shares.


 






     


     


    

 


5.             Sale
and Delivery to the Designated Agent; Settlement.


 


(a)            Sale
of Placement Shares.  On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Designated Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated
Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable law and regulations to sell such Placement Shares up to the amount specified, and otherwise in accordance
with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Designated
Agent will be successful in selling Placement Shares, (ii) the Designated 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 Designated Agent to use
its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell
such Placement Shares as required under this Agreement and (iii) the Designated Agent shall be under no obligation to purchase Placement
Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and the Company.


 


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


 


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


 






     


     


    

 


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


 


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


 


(f)            Sales
Through Agents. With respect to the offering and sale of Placement Shares pursuant to this Agreement, the Company agrees that any
offer to sell Placement Shares, any solicitation of an offer to buy Placement Shares, and any sales of Placement Shares shall only be
effected by or through the Designated Agent on any single given day, and the Company shall in no event request that more than one Agent
offer or sell Placement Shares pursuant to this Agreement on the same day.


 






     


     


    

 


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


 


(a)            Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the applicable conditions set forth in Form S-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration
Statement has been or will be filed with the Commission and has been or will be declared effective by the Commission under the Securities
Act prior to the issuance of any Placement Notices by the Company. As of each Applicable Time, the Registration Statement is effective.
The Prospectus Supplement will name the Agents as the agents in the section entitled “Plan of Distribution.” The Company has
not received, and has no notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening
or instituting proceedings for that purpose. The Registration Statement and the offer and sale of Placement Shares as contemplated hereby
meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations,
contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments
or supplements and all documents incorporated by reference therein 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 Agents and their counsel. The Company has not distributed and, prior
to the later to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering
material in connection with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and
any Issuer Free Writing Prospectus to which the Agents have consented (such consent not to be unreasonably withheld, conditioned or delayed).
The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently listed on the Exchange under the
trading symbol “CGTX.” The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act, delisting the Common Stock from the Exchange, nor has the Company received any notification
that the Commission or the Exchange is contemplating terminating such registration or listing. To the Company’s knowledge, it is
in compliance with all applicable listing requirements of the Exchange.


 


(b)            No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or
supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with
the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, on the date thereof
and at each Applicable Time (defined below), did not or will not include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The documents
incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated by
reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material
fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Agents in writing specifically for use in the preparation thereof,
it being understood and agreed that the only such information furnished by the Agents to the Company consists of “Agents Information”
as defined below.


 






     


     


    

 


(c)            Conformity
with the Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are filed with the Commission under the Securities Act or the Exchange Act or became or become effective
under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable.


 


(d)            Emerging
Growth Company. From the time of initial confidential submission of the Registration Statement to the Commission (or, if earlier,
the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Section 5(d) Written
Communication or Section 5(d) Oral Communication) through the date hereof, the Company has been and is an “emerging growth
company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”).


 


(e)            Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement,
the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present fairly, in all
material respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated
and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified
and have been prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with U.S. Generally
Accepted Accounting Principles (“GAAP”) applied on a consistent basis during the periods involved except as
may be expressly stated in the related notes thereto; the other financial and statistical data with respect to the Company and the Subsidiaries
(as defined below) contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any, are accurately and fairly presented and prepared on a basis consistent 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 not included or incorporated by reference as required; the Company and the Subsidiaries
(as defined below) do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits thereto), and the Prospectus; and all disclosures contained or incorporated
by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects
with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and
guidelines applicable thereto.


 


(f)            Conformity
with EDGAR Filing. The Prospectus delivered to the Agents for use in connection with the sale of the Placement Shares pursuant to
this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T.


 






     


     


    

 


(g)            Organization.
The Company and each of its Subsidiaries (defined below) 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 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, stockholders’
equity or results of operations of the Company and the Subsidiaries taken as a whole, or prevent or materially interfere with the consummation
of the transactions contemplated hereby (a “Material Adverse Effect”).


 


(h)            Subsidiaries.
The subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”), are the Company’s
only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission). Except as set
forth in the Registration Statement and in the Prospectus, 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 currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution
on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.


 


(i)            No
Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries are subject; or
(iii) in violation of any Law of any Governmental Authority, except, in the case of each of clauses (ii) and (iii) above,
for any such violation or default that would not, individually or in the aggregate, have a Material Adverse Effect. To the Company’s
knowledge, no other party under any material contract or other agreement to which it or any of its Subsidiaries is a party is in default
in any respect thereunder where such default would have a Material Adverse Effect.


 






     


     


    

 


(j)            No
Material Adverse Effect. Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus
and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein), there has not been (i) any
Material Adverse Effect or the occurrence of any development that the Company reasonably expects will result in a Material Adverse Effect,
(ii) any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability,
direct or contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is material to the
Company and the Subsidiaries taken as a whole, (iv) any material change in the capital stock or outstanding long-term indebtedness
of the Company or any of its Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the capital stock
of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in the Registration
Statement or Prospectus (including any document incorporated by reference therein).


 


(k)            Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and nonassessable and, other
than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first refusal or
similar rights. 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 or other equity awards under the Company’s
existing equity incentive plans, or changes in the number of outstanding shares of Common Stock of the Company due to the issuance of
shares upon the exercise or conversion of securities exercisable for, or convertible into, Common Stock outstanding on the date hereof)
and such authorized capital stock conforms 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 capital stock or other securities.


 


(l)            Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general equitable principles.


 


(m)            Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein,
will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued, will conform in all
material respects to the description thereof set forth in or incorporated into the Prospectus.


 


(n)            No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Authority
is required for the execution, delivery and performance by the Company of this Agreement, the issuance and sale by the Company of the
Placement Shares, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required under
applicable state securities Laws or Laws of the Financial Industry Regulatory Authority (“FINRA”) or the Exchange
in connection with the sale of the Placement Shares by the Agents.


 






     


     


    

 


(o)            No
Preferential Rights. Except as set forth in the Registration Statement and the Prospectus, (i) no person, as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other capital stock or
other securities of the Company, (ii) no Person has any preemptive rights, resale rights, rights of first refusal, rights of co-sale,
or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Common Stock or shares of
any other capital stock or other securities of the Company, (iii)  no Person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Common Stock, and (iv) no Person has the right, contractual or
otherwise, to require the Company to register under the Securities Act any Common Stock or shares of any other capital stock or other
securities of the Company, or to include any such shares or other securities in the Registration Statement or the offering contemplated
thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated
thereby or otherwise.


 


(p)            Independent
Public Accounting Firm. Ernst & Young LLP (the “Accountant”), whose report 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 into the Registration Statement and the Prospectus, are and, during the periods
covered by their report, were an independent registered public accounting firm within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of the auditor
independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.


 


(q)            Enforceability
of Agreements. To the Company’s knowledge, all agreements between the Company and third parties expressly referenced in the
Prospectus are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except to the
extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’
rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements may be limited
by federal or state securities Laws or public policy considerations in respect thereof.


 


(r)            No
Litigation. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending
or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge, any executive
officer or director that is required to be disclosed in the Prospectus and the Registration Statement which has not been disclosed therein.


 


(s)            Possession
of Licenses and Permits. The Company (A) possesses the licenses, permits, certificates, authorizations, consents and approvals
(collectively, “Governmental Licenses”) issued by the appropriate governmental entities necessary to conduct
its business as currently conducted as described in the Prospectus and the Registration Statement, and (B) has obtained all necessary
Governmental Licenses from other persons necessary to conduct its business, except, in each case of clauses (A) and (B), (i) as
described in the Prospectus and the Registration Statement or (ii) to the extent that any failure to possess any Governmental Licenses,
provide any notice, make any filing, or obtain any Governmental Licenses would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; none of the Company and subsidiaries is in violation of, or in default under, any Governmental License,
except as would not reasonably be expected to have a Material Adverse Effect. All of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force
and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has not
received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.


 






     


     


    

 


(t)            Health
Care Authorizations. The Company has submitted and possesses, or qualifies for applicable exemptions to, such valid and current registrations,
listings, approvals, clearances, licenses, certificates, authorizations or permits and supplements or amendments thereto (collectively,
 “Health Care Authorizations”) issued or required by the appropriate local, state, federal, national, supranational
or other foreign regulatory agencies or bodies (collectively, “Health Regulatory Agencies”) necessary to conduct
its business as described in the Registration Statement and the Prospectus, including, without limitation, all such Health Care Authorizations
required by the FDA, the Australian Therapeutic Goods Administration (“TGA”), the Department of Health and Human
Services, the European Commission, the EMA or any other Health Regulatory Agencies engaged in the regulation of Biologics (as defined
in the Public Health Service Act of 1944, as amended (42 U.S.C. 6A et seq.)), except as would not be reasonably expected to result in
a Material Adverse Effect. The Company has not received any notice of proceedings, or have any knowledge of any threatened proceedings,
relating to the revocation or modification of, or non-compliance with, any such Health Care Authorization, except where such revocation,
modification or non-compliance would not result in a Material Adverse Effect.


 


(u)            Compliance
with Health Care Laws. The Company is, and has been, in compliance with all applicable Health Care Laws, and has not engaged in activities
which are, as applicable, cause for false claims liability, civil penalties, or mandatory or permissive exclusion from Medicare, Medicaid
or any other state, federal or national health care program, except where such noncompliance, false claims liability or civil penalties
would not reasonably be expected to, singly or in the aggregate, result in a Material Adverse Effect. For purposes of this Agreement,
 “Health Care Laws” means all health care laws applicable to the Company, including, but not limited to: the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)),
the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the Physician Payments Sunshine Act (42 U.S.C. § 1320a-7h), the Civil
False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)), all criminal laws
relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health care fraud criminal
provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section 1320d
et seq.), the exclusion laws (42 U.S.C. § 1320a-7), Basic Health and Human Services Policy for Protection of Human Research Subjects
 "Common Rule" as codified and enforced by the Department of Health and Human Services in 45 C.F.R. part 46 and enforced by FDA
under 21 C.F.R. part 50, Laboratory Animal Welfare Act of 1966, HIPAA, as amended by the Health Information Technology for Economic and
Clinical Health Act (42 U.S.C. Section 17921 et seq.), Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of
the Social Security Act), any and all other applicable comparable local, state, federal, national, supranational and foreign health care
laws and the regulations promulgated pursuant to such laws, each as amended from time to time. The Company has not received written notice
of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator
or governmental or regulatory authority or third party alleging that any product operation or activity is in material violation of any
Health Care Laws, and, to the knowledge of the Company, no such claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action is threatened. The Company has not received any written notice of adverse filing, warning letter, untitled
letter or other correspondence or notice from the FDA, the European Commission, the EMA, the TGA or any other Health Regulatory Agencies,
or any other court or arbitrator, alleging or asserting material noncompliance with the Health Care Laws. The Company is not a party to
and has no ongoing reporting obligations pursuant to any corporate integrity agreements, deferred prosecution agreements, monitoring agreements,
consent decrees, settlement orders, plans of correction or similar agreements with or imposed by any governmental or regulatory authority.
Additionally, neither the Company, nor, to the knowledge of the Company, any of its employees, officers or directors has been excluded,
suspended or debarred from participation in any U.S. federal health care program or human research study or trial or, to the knowledge
of the Company, is subject to a governmental inquiry, investigation, proceeding, or other similar action that could reasonably be expected
to result in debarment, suspension or exclusion.


 






     


     


    

 


(v)            Research
Studies and Trials. (A) The research studies and trials conducted by or, to the Company's knowledge, on behalf of, or sponsored
by, the Company, or in which the Company has participated, that are described in the Registration Statement or the Prospectus, or the
results of which are referred to in the Registration Statement or the Prospectus, as applicable, were and, if still pending, are being,
conducted in all material respects in accordance with applicable experimental protocols, procedures and controls pursuant to, where applicable,
accepted professional and scientific standards for products or product candidates comparable to those being developed by the Company and
all applicable statutes, rules and regulations of the FDA, National Institute of Health Department of Health and Human Services,
the European Commission, the EMA, the TGA and any other Health Regulatory Agencies to which it is subject; (B) the descriptions of
the results of such studies and trials contained in the Registration Statement or the Prospectus do not contain any misstatement of a
material fact or omit to state a material fact necessary to make such statements not misleading; (C) the Company has no knowledge
of any research studies or trials not described in the Registration Statement and the Prospectus the results of which reasonably call
into question in any material respect the results of the research studies and trials described in the Registration Statement or the Prospectus;
(D) the Company has not received any notices or correspondence from the FDA, the European Commission, the EMA, the TGA or any Health
Regulatory Agency or any institutional review board or comparable authority requiring or threatening the premature termination, suspension,
material modification or clinical hold of any research studies or trials conducted by or on behalf of, or sponsored by, the Company or
in which the Company has participated that are described in the Registration Statement or the Prospectus, and, to the Company's knowledge,
there are no reasonable grounds for the same; (E) there has not been any violation of applicable law or regulation by the Company
in any of its product development efforts, submissions or reports to the FDA, the European Commission, the EMA, the TGA or any other Health
Regulatory Agency that could reasonably be expected to require investigation, corrective action or result in enforcement action, except
where such violation would not, singly or in the aggregate, result in a Material Adverse Effect; and (F) the research studies and
clinical trials of Company are being conducted in an ethical and human manner under state, national or supra-national applicable laws
that are either equal or more stringent than applicable laws and regulations enforced by the Department of Health and Human Services and
FDA governing human, animal or non-human primate research participants and test subjects and such studies and the clinical trials are
conducted under the auspices of a neutral and independent Institutional Animal Care and Use Committee or Institutional Review Board and
applicable state, national, or supra national agencies responsible for oversight.


 






     


     


    

 


(w)            Health
Care Products Manufacturing. The manufacture of the Company's products by or, to the knowledge of the Company, on behalf of the Company
is being conducted in compliance with all applicable Health Care Laws, including, without limitation, the FDA's regulation pertaining
to Biologics at 21 CFR Part 600, and, to the extent applicable, the respective counterparts thereof promulgated by the European Commission,
the EMA, TGA or other Health Regulatory Agencies. Except as disclosed in the Registration Statement and the Prospectus, the Company has
not had any manufacturing site (whether owned by the Company or, to the knowledge of the Company, that of a third party manufacturer for
the Company's products) subject to an FDA, European Commission, EMA, TGA or other Health Regulatory Agency shutdown or import or export
prohibition, nor received any FDA, European Commission, EMA or other Health Regulatory Agency “warning letters,” or “untitled
letters”" alleging or asserting material noncompliance with any applicable Health Care Laws, requests to make material changes
to the Company's products, processes or operations, or similar correspondence or notice from the FDA, the European Commission, the EMA,
the TGA or other Health Regulatory Agency alleging or asserting material noncompliance with any applicable Health Care Laws, other than
those that have been satisfactorily addressed and/or closed with the FDA, the European Commission, the EMA or other Health Regulatory
Agency. To the knowledge of the Company, none of the FDA, the European Commission, the EMA, the TGA or any other Health Regulatory Agency
is considering such action.


 


(x)            Possession
of Intellectual Property. The Company owns or possesses all licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights, software and design licenses, trade secrets, manufacturing processes, other intangible property rights and know-how
as are necessary for the conduct of its business as described in the Prospectus and the Registration Statement (collectively, “Intellectual
Property”), except where the failure to own or possess such Intellectual Property would not reasonably be expected to have a
Material Adverse Effect. The Company has not received written notice of any infringement of or conflict with (and the Company does not
know of any such infringement of or conflict with) any asserted rights of others with respect to any Intellectual Property used by the
Company that would reasonably be expected to have a Material Adverse Effect.


 


(y)            Company
IT Systems. The Company owns or has a valid right to access and use all computer systems, networks, hardware, software, databases,
websites and equipment used to process, store, maintain and operate data, information and functions necessary for the conduct of its business
(the “Company IT Systems”), except where the failure to own or have the right to access the Company IT Systems would
not reasonably be expected to have a Material Adverse Effect. The Company IT Systems are adequate for, and operate and perform in all
material respects as required in connection with, the operation of the business of the Company as currently conducted except as would
not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect.


 






     


     


    

 


(z)            Market
Capitalization. At the time the Registration Statement was or will be originally declared effective, and at the time the Company’s
most recent Annual Report on Form 10-K was filed with the Commission, the Company met or will meet the then applicable requirements
for the use of Form S-3 under the Securities Act, including, but not limited to, General Instruction I.B.1 of Form S-3. The
Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12
calendar months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined
in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that
is not a shell company.


 


(aa)     FINRA
Matters. All of the information provided to the Underwriters or to counsel for the Underwriters by the Company, its counsel, its officers
and directors and the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection with
the offering of the Offered Shares is true, complete, correct and compliant with FINRA’s rules and any letters, filings or
other supplemental information provided to FINRA pursuant to FINRA Rules is true, complete and correct.


 


(bb)     No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect.
The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last
Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock
or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which
defaults, individually or in the aggregate, would have a Material Adverse Effect.


 


(cc)     Certain
Market Activities. Neither the Company nor any of its subsidiaries has taken, directly or indirectly, any action designed to or that
might cause or result in stabilization or manipulation of the price of the Shares or of any “reference security” (as defined
in Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) with respect to the Common Stock, whether
to facilitate the sale or resale of the Placement Shares or otherwise, and has taken no action which would directly or indirectly violate
Regulation M.


 


(dd)     Broker/Dealer
Relationships. 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).


 


(ee)     No
Reliance. The Company has not relied upon the Agents or legal counsel for the Agents for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.


 






     


     


    

 


(ff)     Payment
of Taxes. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or where
such matters are the result of a pending bona fide dispute with taxing authorities, (A) the Company has accurately prepared and timely
filed all federal, state, foreign and other tax returns or other statements that are or were required to be filed by it, if any, and has
paid or made provision for the payment of all taxes, assessments, governmental or other similar charges, including without limitation,
all sales and use taxes and all taxes which it is obligated to withhold from amounts owing to employees, creditors and third parties,
with respect to the periods covered by such tax returns (whether or not such amounts are shown as due on any tax return), (B) no
deficiency assessment with respect to a proposed adjustment of the Company's federal, state, local or foreign taxes is pending or, to
the Company’s knowledge threatened, (C) since the date of the most recent audited financial statements, the Company has not
incurred any liability for taxes other than in the ordinary course of its business, and (D) there is no tax lien, whether imposed
by any federal, state, foreign or other taxing authority, outstanding against the assets, properties or business of the Company.


 


(gg)     Title
to Property. The Company has legal and valid title to all assets and properties described as owned by it in the Prospectus and the
Registration Statement (whether through fee ownership, mineral estates or similar rights of ownership), in each case free and clear of
all liens, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and any real
property or personal property held under lease by the Company is held under a lease that is valid, existing and enforceable by the Company
with such exceptions as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and the
Company has not received any written notice of any material claim that is adverse to the rights of the Company under any lease


 


(hh)     Environmental
Laws. Except as set forth in the Registration Statement or the Prospectus, (A) the Company is not in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection
of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively,
 “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, “Environmental Laws”), except for those violations that would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (B) the Company has all permits, authorizations
and approvals required under any applicable Environmental Laws and is in compliance in all material respects with their requirements,
(C) there are no pending or, to the Company’s knowledge, threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental
Law against the Company, and (D) to the Company's knowledge, there are no events or circumstances that would reasonably be expected
to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company relating to Hazardous Materials or any Environmental Laws.


 






     


     


    

 


(ii)            Disclosure
Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. The Company’s internal control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting (other than as set forth in the Prospectus). Since the date of the latest
audited financial statements of the Company included in the Prospectus, there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting (other than as set forth in the Prospectus). The Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that
material information relating to the Company and each of its Subsidiaries is made known to the certifying officers by others within those
entities, particularly during the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q,
as the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s
disclosure controls and procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal year most
recently ended (such date, the “Evaluation Date”). The Company presented in its Form 10-K for the fiscal
year most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date and the disclosure controls and procedures are effective. Since the Evaluation Date,
there have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation
S-K under the Securities Act) or, to the Company’s knowledge, in other factors that could significantly affect the Company’s
internal controls.


 


(jj)     Sarbanes-Oxley.
There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as
such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated
thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive
officer of the Company and each former principal financial officer of the Company as applicable) has made all certifications required
by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents required
to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.


 


(kk)     Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to the Agents
pursuant to this Agreement.


 


(ll)     Employment
Laws Compliance. The Company has not violated, or received any notice of any violation with respect to, any law, rule, regulation,
order, decree or judgment applicable to it and its business, including those relating to transactions with affiliates, environmental,
safety or similar laws, federal or state laws relating to discrimination in the hiring, promotion or pay of employees, federal or state
wages and hours law, the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder,
except for those violations that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.


 






     


     


    

 


(mm)     Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares, will be an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).


 


(nn)     Money
Laundering Laws. The Company has not, and to the Company’s knowledge, none of the officers or directors of the Company have,
and, to the Company's knowledge, none of the Company’s employees or agents purporting to act on behalf of the Company, as applicable,
have made any payment of funds of the Company or received or retained any funds in violation of any law, rule or regulation relating
to the “know your customer” and anti-money laundering laws of any jurisdiction (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any governmental entity involving the Company with respect to the Money
Laundering Laws is pending or to the Company’s knowledge, threatened.


 


(oo)            Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or any of
its affiliates and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or limited purpose
entity (each, an “Off-Balance Sheet Transaction”) that would reasonably be expected to affect materially the
Company’s liquidity or the availability of or requirements for its capital resources, including those Off-Balance Sheet Transactions
described in the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of
Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which have not been described as required.


 


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


 


(qq)     ERISA.
To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained in material
compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited
to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to the
Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and for each
such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value
of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.


 






     


     


    

 


(rr)     Forward-Looking
Statements. 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) 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 an executive officer or director of the Company that is was false or misleading.


 


(ss)     Agent
Purchases. The Company acknowledges and agrees that the Agents have informed the Company that any Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect, provided,
that the Company shall not be deemed to have authorized or consented to any such purchases or sales by such Agent.


 


(tt)     Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.


 


(uu)     Insurance.
The Company carries, or is covered by, insurance (issued by insurers of recognized financial responsibility) in such amounts and covering
such risks as is appropriate for the conduct of its entire business and the value of its assets, all of which insurance is in full force
and effect in all material respects.


 


(vv)     Foreign
Corrupt Practices Act. Neither the Company nor any of the directors, employees or officers of the Company or, to its knowledge, any
other person acting on behalf of the Company has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other
than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer
or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political
party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business
of the Company (or assist it in connection with any actual or proposed transaction) that (i) might subject the Company to any damage
or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, might have had a Material
Adverse Effect or (iii) if not continued in the future, might have a Material Adverse Effect. The Company has taken reasonable steps
to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects with the
Foreign Corrupt Practices Act of 1977, as amended.


 


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


 


(xx)            No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of
each Applicable Time (as defined in Section 23 below), 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. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by
the Agents specifically for use therein.


 






     


     


    

 


(yy)     No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation
of any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and
thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a
default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the
property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such
conflicts, breaches and defaults that would not have a Material Adverse Effect; nor will such action result (x) in any violation
of the provisions of the organizational or governing documents of the Company, or (y) in any material violation of the provisions
of any statute or any order, rule or regulation applicable to the Company or of any Governmental Authority having jurisdiction over
the Company.


 


(zz)     OFAC.
The Company is not, and, to the Company’s knowledge, none of its directors, officers agents or employees purporting to act on behalf
of the Company are currently the target of or reasonably likely to become the target of any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly
use the proceeds of the Offering of the Public Securities hereunder, or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently the
target of any U.S. sanctions administered by OFAC.


 


(aaa)     Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to be paid
in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been fully complied with.


 


(bbb)     Statistical
and Market-Related Data.  All statistical, demographic and market-related data included in the Registration Statement and Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate or represent the Company’s good faith
estimates that are made on the basis of data derived from such sources.


 


(ccc)     Stock
Exchange Listing. The Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and are listed on
The NASDAQ Global Market (“NASDAQ”), and the Company has taken no action designed to, or 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. To the Company’s knowledge,
it is in compliance with all applicable listing requirements of NASDAQ.


 






     


     


    

 


(ddd)     Related-Party
Transactions. There are no business relationships or related-party transactions involving the Company or any of its subsidiaries or
any other person required to be described in the Registration Statement or the Prospectus that have not been described as required.


 


(eee)     FINRA
Matters. All of the information provided to the Underwriters or to counsel for the Underwriters by the Company, its counsel, its officers
and directors and the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection with
the offering of the Offered Shares is true, complete, correct and compliant with FINRA’s rules and any letters, filings or
other supplemental information provided to FINRA pursuant to FINRA Rules is true, complete and correct.


 


(fff)     Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company as currently conducted, free and
clear of known material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including all “Personal Data” (defined below) and all sensitive, confidential or regulated data (“Confidential
Data”) used in connection with their businesses. “Personal Data” means (i) a natural person’s name,
street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license
number, passport number, credit card number, bank information, or customer or account number; (ii) any information which would qualify
as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data”
as defined by the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679); (iv) any information
which would qualify as “protected health information” under HIPAA; (v) any “personal information” as defined
by the California Consumer Privacy Act (“CCPA”); and (vi) any other piece of information that allows the
identification of such natural person, or his or her family, or permits the collection or analysis of any data related to an identified
person’s health or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of or accesses to same,
except for those that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents
under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material compliance with
all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems, Confidential Data, and Personal
Data and to the protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access, misappropriation or
modification.


 






     


     


    

 


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


 


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


 


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


 


(a)            Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by the Agents under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agents promptly of the time
when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare
and file with the Commission, promptly upon the Agents’ reasonable request, any amendments or supplements to the Registration Statement
or Prospectus that, in the Agents’ reasonable opinion, may be necessary or advisable in connection with the distribution of the
Placement Shares by the Agents (provided, however, that the failure of the Agents to make such request shall not relieve
the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, that the only remedy the Agents shall have with respect to
the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the
Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted to the Agents within a reasonable period of time before
the filing and the Agents have not reasonably objected in writing thereto (provided, however, that the failure of the Agents
to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agents’ right to rely
on the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy
the Agents shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement)
and the Company will furnish to the Agents at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated
by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company
will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph
of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with
the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any
amendment or supplement with the Commission under this Section 7(a), based on the Company’s reasonable opinion or reasonable
objections, shall be made exclusively by the Company); provided, however, that the Company may delay any such amendment or supplement
if, in the reasonable judgment of the Company, it is in the best interests of the Company to do so.


 






     


     


    

 


(b)            Notice
of Commission Stop Orders. The Company will advise the Agents, 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 Agents promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.


 


(c)            Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agents 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 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 to file on or before their respective
due dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information
from the Registration Statement pursuant to Rule 430B under the Securities Act, it will use its commercially reasonable efforts to
comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and to notify the Agents
promptly of all such filings. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Agents 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.


 


(d)            Listing
of Placement Shares. Prior to the date of the first Placement Notice, the Company will use its commercially reasonable efforts to
cause the Placement Shares to be listed on the Exchange.


 






     


     


    

 


(e)            Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agents and their counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating
to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during
such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities
as the Agents may from time to time reasonably request and, at the Agents’ 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 Agents to the extent such document is available on EDGAR.


 


(f)            Earning
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earning statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act; provided, however, that the Company shall be
deemed to satisfy this Section 7(f) through public filings made by the Company using the EDGAR system.


 


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


 


(h)            Notice
of Other Sales. Without the prior written consent of the Agents, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement Notice
is delivered to Agents hereunder and ending on the fifth (5th) Trading Day immediately following the final Settlement Date
with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended
prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly
or indirectly in any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any
option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock prior to the sixtieth (60th)
day immediately following the termination of this Agreement; provided, however, that such restrictions will not be required
in connection with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock or Common Stock issuable
upon the exercise of options, pursuant to any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment
plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in
effect or hereafter implemented, (ii) Common Stock issuable upon conversion of securities or the exercise 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 Agents
and (iii) Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration for mergers, acquisitions,
other business combinations or strategic alliances occurring after the date of this Agreement which are not issued for capital raising
purposes.


 






     


     


    

 


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


 


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


 


(k)            Required
Filings Relating to Placement of Placement Shares. The Company shall disclose, in its quarterly reports on Form 10-Q and in its
annual report on Form 10-K to be filed by the Company with the Commission from time to time, the number of the Placement Shares sold
through the Agents under this Agreement, and the net proceeds to the Company from the sale of the Placement Shares pursuant to this Agreement
during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report
and the fourth quarter of such fiscal year. The Company agrees that on such dates as the Securities Act shall require, the Company will
(i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act (each and every filing date under Rule 424(b), a “Filing Date”), which prospectus supplement will set
forth, within the relevant period, the amount of Placement Shares sold through the Agents, the Net Proceeds to the Company and the compensation
payable by the Company to the Agents 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.


 


(l)            Representation
Dates; Certificate. (1) Prior to the date of the first Placement Notice and (2) each time the Company:


 


(i) files the Prospectus relating
to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of securities other
than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus
relating to the Placement Shares;


 


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


 


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


 






     


     


    

 


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


 


the Company shall furnish the Agents (but in the
case of clause (iv) above only if the Agents reasonably determine that the information contained in such Form 8-K is material)
with a certificate dated the Representation Date, in the form and substance reasonably satisfactory to the Agents and their counsel, substantially
similar to the form previously provided to the Agents and their counsel, modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented. The requirement to provide a certificate under this Section 7(l) shall
be waived for any Representation Date occurring at a time a Suspension is in effect, which waiver shall continue until the earlier to
occur of the date the Company delivers instructions for the sale of Placement Shares hereunder (which for such calendar quarter shall
be considered a Representation Date) and the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently
decides to sell Placement Shares following a Representation Date when a Suspension was in effect and did not provide the Agents with a
certificate under this Section 7(l), then before the Company delivers the instructions for the sale of Placement Shares or
the Agents sell any Placement Shares pursuant to such instructions, the Company shall provide the Agents with a certificate in conformity
with this Section 7(l) dated as of the date that the instructions for the sale of Placement Shares are issued.


 


(m)            Legal
Opinion. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause to be furnished to the Agents (i) a written opinion
and negative assurance letter of Troutman Pepper Hamilton Sanders LLP (“Company Counsel”) and (ii) a written
opinion of DLA Piper LLP (US) (“Company IP Counsel”), or in each case other counsel satisfactory to the Agents,
in form and substance reasonably satisfactory to the Agents and their counsel, substantially similar to the form previously provided to
the Agents and their counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, the Company shall not be required to furnish any such opinions if the Company does not intend to
deliver a Placement Notice in such calendar quarter until such time as the Company delivers its next Placement Notice; provided further,
that in lieu of such opinions for subsequent periodic filings under the Exchange Act, counsel may furnish the Agents with a letter (a
 “Reliance Letter”) to the effect that the Agents may rely on a prior opinion delivered under this Section 7(m) to
the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance Letter).


 






     


     


    

 


(n)            Comfort
Letter. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause its independent registered public accounting firm to furnish
the Agents letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet
the requirements set forth in this Section 7(n); provided, that if reasonably requested by the Agents, the Company
shall cause a Comfort Letter to be furnished to the Agents within ten (10) Trading Days of the date of occurrence of any material
transaction or event requiring the filing of a Current Report on Form 8-K containing financial information ( including the restatement
of the Company’s financial statements). The Comfort Letter from the Company’s independent registered public accounting firm
shall be in a form and substance reasonably satisfactory to the Agents, (i) confirming that they are an independent registered public
accounting firm within the meaning of the Securities Act and the Public Company Accounting Oversight Board (“PCAOB”),
(ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters
ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings
(the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with
any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to
relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.


 


(o)            Market
Activities; Compliance with Regulation M. The Company will not, directly or indirectly, (i) take any action designed to cause
or result in, or that constitutes or would reasonably be expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation
of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agents.


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


(u)            Emerging
Growth Company Status. The Company will promptly notify the Agents if the Company ceases to be an Emerging Growth Company at any time
during the term of this Agreement.


 






     


     


    

 


8.            Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing or electronic delivery
of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as the Agents shall deem necessary,
(ii) the printing and delivery to the Agents of this Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates,
if any, for the Placement Shares to the Agents, including any stock or other transfer taxes and any capital duties, stamp duties or other
duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Agents, (iv) the fees and disbursements
of the counsel, accountants and other advisors to the Company, (v) the fees and expenses of Agents including but not limited to the
fees and expenses of the counsel to the Agents, payable upon the execution of this Agreement, (a) in an amount not to exceed $75,000
in connection with the execution of this Agreement, (b) in an amount not to exceed $25,000 per calendar quarter thereafter payable
in connection with each Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for
which no waiver is applicable and excluding the date of this Agreement, and (c) in an amount not to exceed $20,000 for each program
 “refresh” (filing of a new registration statement, prospectus or prospectus supplement relating to the Placement Shares and/or
an amendment of this Agreement) executed pursuant to this Agreement, (vi) the qualification or exemption of the Placement Shares
under state securities laws in accordance with the provisions of Section 7(r) hereof, including filing fees, but excluding
fees of the Agents’ counsel, (vii) the printing and delivery to the Agents of copies of any Permitted Issuer Free Writing Prospectus
and the Prospectus and any amendments or supplements thereto in such number as the Agents shall deem necessary, (viii) the preparation,
printing and delivery to the Agents of copies of the blue sky survey, (ix) the fees and expenses of the transfer agent and registrar
for the Common Stock, (x) the filing and other fees incident to any review by FINRA of the terms of the sale of the Placement Shares
including the fees of the Agents’ counsel (subject to the cap, set forth in clause (v) above), and (xi) the fees and expenses
incurred in connection with the listing of the Placement Shares on the Exchange.


 


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


 


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


 


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


 


(c)            No
Misstatement or Material Omission. Agents 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 Agents’ reasonable opinion is material, or omits
to state a fact that in the Agents’ reasonable opinion is material and is required to be stated therein or is necessary to make
the statements therein not misleading.


 






     


     


    

 


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


 


(e)            Legal
Opinions. The Agents shall have received the opinions and negative assurance letters required to be delivered pursuant to Section 7(m) on
or before the date on which such delivery of such opinions is required pursuant to Section 7(m).


 


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


 


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


 


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


 


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


 






     


     


    

 


(j)            Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the
issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.


 


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


 


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


 


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


 


10.           Indemnification
and Contribution.


 


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


 


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


 


(ii)            against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company, which
consent shall not unreasonably be delayed or withheld; and


 






     


     


    

 


(iii)            against
any and all expense whatsoever, as incurred (including the reasonable and documented fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission
(whether or not a party), to the extent that any such expense is not paid under (i) or (ii) above,


 


provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agents
Information (as defined below).


 


(b)            Agent
Indemnification. Each Agent severally but not jointly agrees to indemnify and hold harmless the Company and its directors and each
officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 10(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), the Prospectus (or any amendment
or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity
with information relating to such Agent and furnished to the Company in writing by such Agent expressly for use therein. The Company hereby
acknowledges that the only information that the Agents have furnished to the Company expressly for use in the Registration Statement,
the Prospectus, any Prospectus Supplement or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the statements
set forth in the eleventh paragraph under the caption “Plan of Distribution” in the Prospectus (the “Agents Information”).


 


(c)            Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 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 10, 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 10 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 10 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 other legal expenses except as provided below and except for
the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party
will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action or counsel
reasonably satisfactory to the indemnified party, in each case, 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 (plus local
counsel) 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 as they are incurred. 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 10 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent (1) includes an express and unconditional release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.


 






     


     


    

 


(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 10,
such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 10(a)(ii) effected
without its written consent if (1) such settlement is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (2) 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 (3) 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 10 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient
from the Company or an Agent, the Company and such Agent will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted) to which the Company and the Agents 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 Agents on the other hand. The relative benefits received
by the Company on the one hand and the Agents 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
Agents 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 such Agent,
on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action
in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company or such 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 each Agent agree that
it would not be just and equitable if contributions pursuant to this Section 10(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 in respect thereof, referred
to above in this Section 10(e) shall be deemed to include, for the purpose of this Section 10(e), any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim
to the extent consistent with Section 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(e),
an 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 10(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 10(e),
any person who controls a party to this Agreement within the meaning of the Securities Act, any affiliates of an Agent and any officers,
directors, partners, employees or agents of an Agent or any of its affiliates, will have the same rights to contribution as that party,
and each director of the Company 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 10(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 10(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 10(c) hereof,
no party will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required
pursuant to Section 10(c) hereof. The Agents’ respective obligations to contribute pursuant to this Section 10(e) are
several in proportion to the respective number of Placement Shares they have sold hereunder, and not joint.


 


11.            Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 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 any 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.


 






     


     


    

 


12.           Termination.


 


(a)            Each
Agent may terminate this Agreement with respect to itself, by notice to the Company, as hereinafter specified at any time (1) if
there has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any
change, or any development or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties,
earnings, results of operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, which individually or in the aggregate, in the sole judgment of such Agent is material and adverse
and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if
there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the
judgment of such Agent, impracticable or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement
Shares, (3) if trading in the Common Stock has been suspended or limited by the Commission or the Exchange, or if trading generally
on the Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension
of trading of any securities of the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if
a major disruption of securities settlements or clearance services in the United States shall have occurred and be continuing, or (6) if
a banking moratorium has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification
and Contribution), Section 11 (Representations and Agreements to Survive Delivery), Section 17 (Governing Law
and Time; Waiver of Jury Trial) and Section 18 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding
such termination. If an Agent elects to terminate this Agreement as provided in this Section 12(a), such Agent shall provide
the required notice as specified in Section 13 (Notices). For the avoidance of doubt, the termination by one Agent of its
rights and obligations under this Agreement pursuant to this Section 12(a) shall not affect the rights and obligations
of the other Agents under the Agreement.


 


(b)            The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination. For the avoidance of doubt, the termination by the Company
of this Agreement with respect to one Agent pursuant to this Section 12(b) shall not affect the rights and obligations of the
other Agents under this Agreement.


 


(c)            Each
Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination. For the avoidance of doubt, the termination by one Agent
of its rights and obligations under this Agreement pursuant to this Section 12(c) shall not affect the rights and obligations
of the other Agents under this Agreement.


 






     


     


    

 


(d)            This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), or (c) above
or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall
in all cases be deemed to provide that Section 8, Section 10, Section 11, Section 17 and
Section 18 shall remain in full force and effect.


 


(e)            Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agents 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.


 


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


 


Cantor Fitzgerald & Co. 


499 Park Avenue 


New York, NY 10022 


		Attention:	Capital Markets
		Facsimile:	(212) 307-3730



 


and:


 


Cantor Fitzgerald & Co. 


499 Park Avenue 


New York, NY 10022 


		Attention:	General Counsel
		Facsimile:	(212) 829-4708



 


and:


 


B. Riley Securities, Inc. 


299 Park Avenue, 7th Floor 


New York, NY 10171 


		Attention:	General Counsel
		Telephone:	(212) 457-9947
		Email:	atmdesk@brileyfin.com



 


with a copy to:


 


Duane Morris LLP 


1540 Broadway 


New York, NY 10036 


		Attention:	James T. Seery
		Telephone:	(973) 424-2088
		Email:	jtseery@duanemorris.com



 






     


     


    

 


and if to the Company,
shall be delivered to:


 


Cognition Therapeutics, Inc. 


2500 Westchester Ave. 


Purchase, NY 10577 


		Attention:	Lisa Ricciardi, Chief Executive
Officer
		Email:	lricciardi@cogrx.com



 


with a copy to:


 


Troutman Pepper Hamilton Sanders
LLP 


3000 Two Logan Square 


Philadelphia, PA
19103 


		Attention:	Rachael M. Bushey and Joseph Walsh
		Email:	rachael.bushey@troutman.com
	 	 	joseph.walsh@troutman.com



 


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 below, (iii) on the next Business Day after timely delivery
to a nationally-recognized overnight courier and (iv) on the Business Day actually received if deposited in the U.S. mail (certified
or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day”
shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.


 


An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall
be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be
sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.


 


14.            Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and each Agent and their respective successors
and the parties referred to in Section 10 hereof. References to any of the parties contained in this Agreement shall be deemed to
include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that each Agent may assign
its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s consent so long as such affiliate is
a registered broker-dealer, and such Agent provides advance written notice of such assignment to the Company.


 






     


     


    

 


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


 


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


 


17.            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.


 


18.            CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.


 






     


     


    

 


19.            Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile, electronic
mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic
Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.


 


20.            Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer
to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted,
supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated
thereunder.


 


21.            Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of the Agents,
and the Agents represents, warrants and agrees that, unless it obtains the prior written consent of the Company, 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 Agents or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus
as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending
and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit 21
hereto are Permitted Free Writing Prospectuses.


 


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


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision
of any of the foregoing.


 


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


 


“Law”
means any and all laws, including all federal, state, local, municipal, national or foreign statutes, codes, ordinances, guidelines, decrees,
rules, regulations and by-laws and all judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders,
directives, decisions, rulings or awards or other requirements of any Governmental Authority, binding on or affecting the person referred
to in the context in which the term is used and rules, regulations and policies of any stock exchange on which securities of the Company
are listed for trading.


 






     


     


    

 


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


 


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


 


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


 


[Signature Page Follows]


 






     


     


    

 


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


 


	 	Very truly yours,




 


	 	COGNITION THERAPEUTICS, INC.    
	 	 
	 	By:	/s/ Andrew Einhorn
	 	 	Name:	Andrew Einhorn
	 	 	Title:	Interim Chief Financial Officer



 


	 	ACCEPTED as of the date first-above written:




 


	 	CANTOR FITZGERALD & CO.    
	 	 
	 	By:	/s/ Sage Kelly
	 	 	Name:	Sage Kelly
	 	 	Title: 	Global Head of Investment Banking



 


	 	B. RILEY SECURITIES, INC.    
	 	 
	 	By:	/s/ Patrice McNicoll
	 	 	Name:	Patrice McNicoll
	 	 	Title: 	Co-Head of Investment Banking



 


[Signature page to Cognition therapeutics, Inc.
Controlled Equity OfferingSM Sales Agreement]


 






     


     


    

 


SCHEDULE 1


 


 



 


Form of Placement Notice


 


 



 


		From:	Cognition Therapeutics, Inc.



 


		To:	[Cantor Fitzgerald & Co.][B. Riley Securities, Inc.]

Attention: [•]



 


		Subject:	Placement Notice



 


		Date:	[•], 20[•]



 


Ladies and Gentlemen:


 


Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Cognition Therapeutics, Inc., a Delaware corporation (the “Company”),
Cantor Fitzgerald & Co. and B. Riley Securities, Inc. (“Agents”), dated December 23, 2022,
the Company hereby requests that [identify Designated Agent] sell up to [•] of the Company’s common stock, par value
$0.001 per share, at a minimum market price of $[•] per share, during the time period beginning [month, day, time] and ending [month,
day, time].


 






     


     


    

 


SCHEDULE 2


 


 



 


Compensation


 


 



 


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


 






     


     


    

 


SCHEDULE 3


 


 



 


Notice Parties


 


 



 


The Company


 


Lisa
Ricciardi (lricciardi@cogrx.com)


 


Andrew
Einhorn (aeinhorn@cogrx.com)


 


Cantor


 


Sameer Vasudev (svasudev@cantor.com)


 


With copies to:


 


CFCEO@cantor.com


 


B. Riley


 


	Seth
                            Appel	sappel@brileyfin.com



 


	Patrice
                            McNicoll	pmcnicoll@brileyfin.com



 


	Keith
                            Pompliano	kpompliano@brileyfin.com



 


	Scott
                            Ammaturo	sammaturo@brileyfin.com



 


with a copy to atmdesk@brileyfin.com


 






     


     


    

 


SCHEDULE 4


 


 



 


Subsidiaries


 


 



 


Incorporated by reference to Exhibit 21.1 of the Company’s
most recently filed Form 10-K, as applicable.


 






     


     


    

 


Form of Representation Date Certificate
Pursuant to Section 7(l)


 


The undersigned, the duly qualified and elected
[•], of Cognition Therapeutics, Inc., a Delaware corporation (the “Company”), does hereby certify in such
capacity and on behalf of the Company, pursuant to Section 7(l) of the Sales Agreement, dated December 23, 2022
(the “Sales Agreement”), between the Company, Cantor Fitzgerald & Co. and B. Riley Securities, Inc.,
that to the best of the knowledge of the undersigned:


 


(i) The representations and warranties of
the Company in Section 6 of the Sales Agreement are true and correct on and as of the date hereof with the same force and
effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date; provided, however, that such representations and warranties also shall
be qualified by the disclosure included or incorporated by reference in the Registration Statement and Prospectus; and


 


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


 


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


 


	 	COGNITION THERAPEUTICS, INC.  
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 



 


Date: [•]


 






     


     


    

 


Form of Legal Opinion Pursuant to Section 7(m)


 


Capitalized
terms used and not defined herein shall have the meanings ascribed to them in the Sales Agreement.


 


1.            The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
The Company has the corporate power and authority to own, lease and operate its properties and assets and to carry on its business as
now conducted (as described in the Registration Statement and the Prospectus).


 


2.            The
Sales Agreement has been duly and validly authorized, executed and delivered by the Company.


 


3.            The
Placement Shares have been duly authorized and, when issued and paid for pursuant to the terms of the Sales Agreement, will be validly
issued, fully paid and nonassessable and free of any preemptive rights arising by operation of the General Corporation Law of the State
of Delaware (the “DGCL”) or rights of first refusal or other similar rights to subscribe for the Placement Shares pursuant
to the Company’s certificate of incorporation, bylaws or the DGCL, or under any material agreement listed in the exhibit index to
(i) the Annual Report on Form 10-K (the “Form 10-K”), (ii) a Quarterly Report on Form 10-Q filed
after the Form 10-K, or (iii) a Current Report on Form 8-K filed after the Form 10-K (a “Material Agreement”).


 


4.            The
Registration Statement filed with the Commission (No. 333-[•]) which registers the sale of the Placement Shares is currently
effective under the Securities Act of 1933, as amended (the “Securities Act”), and no stop order suspending the effectiveness
of the Registration Statement under the Securities Act has been issued and no proceedings for that purpose have been instituted or, to
our knowledge, threatened. Any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made
in the manner and within the time required by Rule 424(b).


 


5.            The
Registration Statement and the Prospectus (other than the financial statements and schedules and other financial data included or incorporated
by reference therein, as to which we express no opinion), complied as of their respective effective or filing dates in all material respects
as to form with the requirements of the Securities Act and the rules and regulations of the Commission promulgated thereunder.


 


6.            Each
of the Incorporated Documents, when it was filed with the Commission, complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission promulgated thereunder.


 


7.            The
execution, delivery and performance by the Company of, and the compliance by the Company with the terms of, the Sales Agreement and the
issuance, sale and delivery of the Placement Shares pursuant to the Sales Agreement do not (a) conflict with or result in a violation
of any provision of law, rule or regulation or any rule or regulation of any securities exchange applicable to the Company or
of the [certificate of incorporation] or bylaws of the Company, (b) conflict with, result in a breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default) under, or result in or permit the termination or modification
of, a Material Agreement, (c) conflict with or result in any breach or violation of or constitute a default under any order, writ,
judgment or decree known to us to which the Company is a party or is subject, or (d) to our knowledge, result in the creation or
imposition of any lien, claim or encumbrance on any of the assets or properties of the Company.


 






     


     


    

 


8.            To
our knowledge, except as set forth in the Company’s filings with the Commission, there is (i) no claim, action, suit, proceeding,
arbitration, investigation or inquiry, pending or threatened, before any Governmental Authority, against the Company, or any of its officers,
directors or employees (in connection with the discharge of their duties as officers, directors and employees), of the Company, or affecting
any of its properties or assets and (ii) no indenture, contract, lease, mortgage, deed of trust, note agreement, loan or other agreement
or instrument of a character required to be filed as an exhibit to the Registration Statement, which is not filed as required by the Securities
Act and the rules thereunder.


 


9.            In
connection with the valid execution, delivery and performance by the Company of the Sales Agreement, or the offer, sale, issuance or delivery
of the Placement Shares or the consummation of the transactions contemplated thereby, no consent, license, permit, waiver, approval or
authorization of, or designation, declaration, registration or filing with, any Governmental Authority is required, other than registration
pursuant to the Securities Act and approval for listing of the Placement Shares on the Exchange.


 


10.            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, required to register as an Investment Company within the meaning of the Investment Company Act
of 1940, as amended.


 


11.            The
information included in the Registration Statement and the Prospectus under the caption “Description of [Capital/Common] Stock”
and “[Material U.S. Federal Tax Consequences”] to the extent that each of them constitutes matters of law, summaries of legal
matters, documents referred to therein or legal conclusions, have been reviewed by us and fairly summarize the matters set forth therein
in all material respects.


 


12.            Except
as set forth in the Registration Statement and the Prospectus, no holders of securities of the Company have rights to require the registration
under the Securities Act of resales of such securities under any Material Agreement.


 


The opinion of counsel will be accompanied by
a standard Rule 10b-5 negative assurance letter, including the following:


 


Based on our participation, review and reliance
as described above, we advise you that no facts came to our attention that caused us to believe that:


 


·        the
Registration Statement, as of its most recent effective date, including the information deemed to be a part of the Registration Statement
pursuant to Rule 430B under the Securities Act (together with the Incorporated Documents at that time), contained an untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not
misleading; or


 






     


     


    

 


·        the
Prospectus, as of its date or as of the date hereof (together with the Incorporated Documents at those dates), contained or contains
an untrue statement of a material fact or omitted or omits 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;


 


it being understood that we express no
belief with respect to the financial statements and schedules, or other financial or accounting data included or incorporated by
reference in, or omitted from, the Registration Statement, the Prospectus or the Incorporated Documents.


 






     


     


    

 


Exhibit 21


 


Permitted Free Writing Prospectus


 


None.