Exhibit 10.1


 


AT THE MARKET OFFERING AGREEMENT


 


 


July 13, 2020


 


H.C. Wainwright & Co.,
LLC


430 Park Avenue


New York, NY 10022


 


Ladies
and Gentlemen:


       


Bio-Path Holdings,
Inc., a corporation organized under the laws of Delaware (the “Company”), confirms its agreement (this “Agreement”)
with H.C. Wainwright & Co., LLC (the “Manager”) as follows:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Environmental
Laws” shall have the meaning ascribed to such term in Section 3(s).


 


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


 


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


 


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


 


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


 


“Federal
Reserve” shall have the meaning ascribed to such term in Section 3(nn).


  


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


 






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


 


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


 


“Hazardous
Materials” shall have the meaning ascribed to such term in Section 3(s).


 


“Health
Care Laws” shall have the meaning ascribed to such term in Section 3(jj).


 


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


 


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


 


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


 


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


 


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


 


“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3(jj).


 


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


 


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


 


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


 


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


 






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“Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3(oo).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Registration
Statement” shall mean the shelf registration statement (File Number 333-231537) on Form S-3, including exhibits
and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b)
and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event
any post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Trading
Market” means Nasdaq Capital Market.


 


2.                 
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or
principal, from time to time during the term of this Agreement and on the terms set forth herein, up to the “Maximum Amount,”
which is equal to the lesser of such number of shares (the “Shares”) of the Company’s common stock, $0.001 par
value per share (“Common Stock”), that (a) equals the allocated number or dollar amount of shares of Common
Stock registered on the Registration Statement pursuant to which the offering is being made, less the dollar amount of securities
issued under the Registration Statement prior to the date of this Agreement, (b) equals the number of authorized but unissued shares
of Common Stock (less the number of shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities
of the Company or otherwise reserved from the Company’s authorized capital stock), or (c) would cause the Company or the
offering of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable,
General Instruction I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth
in this Section 2 on the number and aggregate sales price of Shares issued and sold under this Agreement shall be the sole responsibility
of the Company and that the Manager shall have no obligation in connection with such compliance.


 


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


 






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


 


(i)             
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day
that (A) is a Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic
mail) to make such sales (“Sales Notice”) and (C) the Company has satisfied its obligations under Section 6
of this Agreement, provided that the deliverables required under Section 6(b) and Section 6(d) shall only be required to
be made on the Execution Time and on a Representation Date on which a material amendment to the Registration Statement or Prospectus
is made or the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the
Manager reasonably requests the deliverables required under Section 6(b) and Section 6(d) in connection with a Representation Date,
upon which request such deliverables shall be deliverable hereunder. The Company will designate the maximum amount of the Shares
to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and the minimum price per Share at which
such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts
to sell on a particular day all of the Shares designated for sale by the Company on such day. The gross sales price of the Shares
sold under this Section 2(b) shall be the market price for the shares of Common Stock sold by the Manager under this Section 2(b)
on the Trading Market at the time of sale of such Shares.


 


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


 






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


 


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


 


(v)           
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3% of the gross
sales price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation
shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a
price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The proceeds, after deduction of the Broker Fee
and deduction of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization
in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).


 


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


 





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


 


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


 


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


 






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


 


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


 






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


 


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


 


(a)              
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the
Company are set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission.
The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear
of any “Liens” (which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance,
right of first refusal, preemptive right or other similar restriction), and all of the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe
for or purchase securities.


 


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


 






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


 


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


 






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(e)              
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority or other “Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or
other entity of any kind, including the Trading Market) in connection with the execution, delivery and performance by the Company
of this Agreement, other than (i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus
Supplement, (iii) the filing of a Current Report on Form 8-K with respect to this Agreement, (iv) the filing of application(s)
to and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby,
and (v) such filings as are required to be made under applicable state securities laws and the rules and regulations of the Financial
Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).


 


(f)               
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement,
will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company
has reserved from its duly authorized capital stock a sufficient number of shares of Common Stock to be issued pursuant to this
Agreement. The issuance by the Company of the Shares has been registered under the Act, and all of the Shares are freely transferable
and tradable by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission
of such a purchaser). The Shares are being issued pursuant to the Registration Statement. The “Plan of Distribution”
section within the Registration Statement describes the issuance and sale of the Shares as contemplated by this Agreement. Upon
issuance of the Shares to the purchasers in accordance with this Agreement, the purchasers of such Shares will have good and marketable
title to such Shares, and such Shares will be freely tradable on the Trading Market.


 


(g)              
Capitalization. As of the Execution Time, the authorized and outstanding capitalization of the Company is as set
forth in the SEC Reports. Except as described in the SEC Reports, the Company has not issued any capital stock since its most recently
filed periodic report under the Exchange Act, other than pursuant to the exercise of stock options held by employees, directors
or consultants or other issuances of capital stock, in each case under the Company’s equity incentive plans, the issuance
of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plan and pursuant to the conversion
and/or exercise of securities exercisable, exchangeable or convertible into Common Stock (“Common Stock Equivalents”)
outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this
Agreement. Except (i) pursuant to the Company’s equity incentive plans and (ii) pursuant to agreements or instruments filed
as exhibits to Incorporated Documents or otherwise disclosed in the Registration Statement, the Base Prospectus, the Prospectus
Supplement or the SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for,
or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary,
or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. As of the Execution Time, the
issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities
to any Person. As of each Applicable Time, Settlement Date and Representation Date, except as disclosed in the SEC Reports, the
issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities
to any Person. At the Execution Time, there are no outstanding securities or instruments of the Company or any Subsidiary with
any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of
securities by the Company or any Subsidiary (other than customary adjustments relating to stock dividends, stock splits and other
similar transactions). As of each Applicable Time, Settlement Date and Representation Date, except as disclosed in the SEC Reports,
there are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise,
conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary
(other than customary adjustments relating to stock dividends, stock splits and other similar transactions). There are no outstanding
securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no
contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem
a security of the Company or such Subsidiary. All of the outstanding shares of capital stock of the Company are duly authorized,
validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none
of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
Other than the Required Approvals, no further approval or authorization of any stockholder, the Board or others is required for
the issuance and sale of the Shares. There are no stockholders agreements, voting agreements or other similar agreements with respect
to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any
of the Company’s stockholders.


 






    	 	12	 



     


    

 


(h)              
Registration Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared
and filed with the Commission the Registration Statement, including a related Base Prospectus, for registration under the Act of
the offering and sale of the Shares. Such Registration Statement is effective and available for the offer and sale of the Shares
as of the date hereof. As filed, the Base Prospectus contains all information required by the Act and the rules thereunder, and,
except to the extent the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished
to the Manager prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The
Registration Statement, at the Execution Time, each such time this representation is repeated or deemed to be made, and at all
times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172,
173 or any similar rule) in connection with any offer or sale of the Shares, meets the requirements set forth in Rule 415(a)(1)(x).
The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time. The
Company meets the transaction requirements with respect to the aggregate market value of securities being sold pursuant to this
offering and during the twelve (12) months prior to this offering, as set forth in General Instruction I.B.6 of Form S-3.


 


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


 


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


 






    	 	13	 



     


    

 


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


 


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


 


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


 






    	 	14	 



     


    

 


(n)              
 Accountants. The Company’s accountants for the fiscal years ending December 31, 2019 and 2018 were BDO USA,
LLP (“BDO”). The Company expects Ernst & Young LLP (“EY”) to express their opinion with respect to
the financial statements to be included in the Company’s next Annual Report on Form 10-K. To the knowledge of the Company,
each of BDO and EY, are a registered public accounting firm as required by the Act.


 


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


 






    	 	15	 



     


    

 


(p)              
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any
of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”) that (i) adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision,
have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor, to the knowledge
of the Company, any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge
of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current
or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Act.


 


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


 






    	 	16	 



     


    

 


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


 


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


 


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


 


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


 






    	 	17	 



     


    

 


(v)              
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or required for use in connection with their respective businesses as described in
the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). Except as disclosed in the SEC Reports, (i) there are no rights of third parties to any such Intellectual
Property Rights owned by the Company and its Subsidiaries, except for licenses granted in the ordinary course to third parties,
or that could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (ii) to the
Company’s knowledge, there is no infringement by third parties of any such Intellectual Property Rights; (iii) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s
and its Subsidiaries’ rights in or to any such Intellectual Property Rights, and the Company is unaware of any facts which
could form a reasonable basis for any such action, suit, proceeding or claim; (iv) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property
Rights; (v) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that
the Company and its Subsidiaries infringe or otherwise violate any patent, trademark, copyright, trade secret or other proprietary
rights of others; (vi) to the Company’s knowledge, there is no third-party U.S. patent or published U.S. patent application
which contains claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135), or the equivalent in any other
jurisdiction, has been commenced against any patent or patent application described in the SEC Reports as being owned by or licensed
to the Company; and (vii) the Company and its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual
Property Rights has been licensed to the Company or such Subsidiary, and all such agreements are in full force and effect, except,
in the case of any of clauses (i)-(vii) above, for any such infringement by third parties or any such pending or threatened suit,
action, proceeding or claim as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2)
years from the date of this Agreement. To the knowledge of the Company, all such Intellectual Property Rights are enforceable (other
than patent and trademark applications) and there is no existing infringement by another Person of any of the Intellectual Property
Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value
of all of their trade secrets and related intellectual property, except where failure to do so could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 






    	 	18	 



     


    

 


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


 


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


 


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


 






    	 	19	 



     


    

 


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


 


(aa)           
No Other Sales Agency Agreement. Effective July 12, 2020, the Company terminated its sales agreement with Cantor
Fitzgerald & Co., dated June 24, 2015. The Company has not entered into any other sales agency agreements or other similar
arrangements with any agent or any other representative in respect of at the market offerings of the Shares.


 


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


 






    	 	20	 



     


    

 


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


 


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


 


(ee)           
Solvency. Based on the consolidated financial condition of the Company as of the Effective Date, (i) the fair saleable
value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s
existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do
not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and
projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with
the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses
of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid.
The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing
and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances which
lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one year from the date hereof. The SEC Reports set forth as of the dates thereof all outstanding secured and unsecured Indebtedness
of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement,
 “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than
trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations
in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance
sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions
in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required
to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.


 






    	 	21	 



     


    

 


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


 


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


 


(hh)          
[reserved]


 


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


 






    	 	22	 



     


    

 


(jj)             
FDA and Non-U.S. Counterparts. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration
(“FDA”) or any non-U.S. counterpart that is manufactured, packaged, labeled, tested, distributed, sold, and/or
marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”), such Pharmaceutical
Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company or its Subsidiaries
in compliance with all applicable Health Care Laws relating to registration, investigational use, premarket clearance, licensure,
or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas,
labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would not reasonably
be expected to have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened, action
(including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
related to any Pharmaceutical Product or against the Company or any of its Subsidiaries, and none of the Company or any of its
Subsidiaries has received any notice, warning letter or other communication from the FDA or any other governmental entity, which
(i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing
or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval
of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials
relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its
Subsidiaries, (iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter
into a consent decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation
of any laws, rules or regulations by the Company or any of its Subsidiaries, and which, either individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect. The properties, business and operations of the Company have been
and are being conducted in all material respects in accordance with all applicable Health Care Laws. The Company has not been informed
by the FDA or any non-U.S. counterpart that the FDA or any non-U.S. counterpart will prohibit the marketing, sale, license or use
in the United States or in any other territory any product proposed to be developed, produced or marketed by the Company or any
Subsidiary nor has the FDA or any non-U.S. counterpart expressed any concern as to approving or clearing for marketing any product
being developed or proposed to be developed by the Company or any Subsidiary. To the Company’s knowledge, there are no legal
or governmental proceedings relating to any Health Care Law pending or threatened to which the Company is a party, nor is it aware
of any material violations of such acts or regulations by the Company, which would have a Material Adverse Effect. For purposes
of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act and the regulations
promulgated thereunder; (ii) all applicable federal, state, local and all applicable foreign health care related fraud and abuse
laws, including, without limitation, the U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the U.S. Physician Payment
Sunshine Act (42 U.S.C. § 1320a-7h), the U.S. 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),
the civil monetary penalties law (42 U.S.C. § 1320a-7a), the statutes, regulations and directives of applicable government
funded or sponsored healthcare programs, and the regulations promulgated pursuant to such statutes; (iii) the Standards for Privacy
of Individually Identifiable Health Information, the Security Standards, and the Standards for Electronic Transactions and Code
Sets promulgated under HIPAA, the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et
seq.), and the regulations promulgated thereunder and any state or non-U.S. counterpart thereof or other law or regulation the
purpose of which is to protect the privacy of individuals or prescribers; (iv) Medicare (Title XVIII of the Social Security Act);
(v) Medicaid (Title XIX of the Social Security Act); and (vi) any and all other applicable health care laws and regulations.


 






    	 	23	 



     


    

 


(kk)          
Equity Incentive Plans. Each stock option granted by the Company under the Company’s equity incentive plan(s)
was granted (i) in accordance with the terms of the Company’s equity incentive plan(s) and (ii) with an exercise price at
least equal to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and
applicable law. No stock option granted under the Company’s equity incentive plan(s) has been backdated. The Company has
not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or
otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information
regarding the Company or its Subsidiaries or their financial results or prospects.


 


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


 


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


 






    	 	24	 



     


    

 


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


 


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


 


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


 


(qq)          
Clinical Studies. To the Company’s knowledge, the preclinical studies and tests and clinical trials described
in the SEC Reports were, and, if still pending, are being, conducted in all material respects in accordance with the 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; the descriptions of such studies, tests and trials, and
the results thereof, contained in the SEC Reports are accurate and complete in all material respects; the Company is not aware
of any tests, studies or trials not described in the SEC Reports, the results of which reasonably call into question the results
of the tests, studies and trials described in the SEC Reports.


 


(rr)             
Regulatory Filings. Except as disclosed in the SEC Reports, neither the Company nor any of its Subsidiaries has failed
to file with the applicable Governmental Authority (including the FDA or any foreign, federal, state or local governmental authority
performing functions similar to those performed by the FDA) any required filing, declaration, listing, registration, report or
submission, except for such failures that, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect; except as disclosed in the SEC Reports, all such filings, declarations, listings, registrations, reports or submissions
were in material compliance with applicable laws when filed and no deficiencies have been asserted by any applicable regulatory
authority with respect to any such filings, declarations, listings, registrations, reports or submissions, except for any deficiencies
that, individually or in the aggregate, would not have a Material Adverse Effect. The Company has operated and currently is, in
all material respects, in compliance with all applicable Health Care Laws.


 






    	 	25	 



     


    

 


 


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


 


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


 






    	 	26	 



     


    

 


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


 


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


 


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


 






    	 	27	 



     


    

 


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


 


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


 


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


 


(h)              
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously
delivered shall not apply during such three Business Days) for at least three (3) Business Days prior to any date on which the
Company or any Subsidiary offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly,
any other shares of Common Stock or any Common Stock Equivalents (other than the Shares), subject to the Manager’s right
to waive this obligation, provided that, without compliance with the foregoing obligation, the Company may issue and sell Common
Stock to employees, directors or consultants pursuant to any employee stock option plan or other equity incentive plan or stock
ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, and the Company may issue Common Stock
issuable upon the conversion or exercise of Common Stock Equivalents outstanding from time to time.


 






    	 	28	 



     


    

 


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


 


(j)                
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6
herein.


 


(k)              
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and
upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder
lasting more than 30 Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented,
other than by means of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii)
the Company files its quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K
containing amended financial information (other than information that is furnished and not filed), if the Manager reasonably determines
that the information in such Form 8-K is material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery
pursuant to a Terms Agreement (such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv)
and (v) above, a “Representation Date”), unless waived by the Manager, the Company shall furnish or cause to
be furnished to the Manager forthwith a certificate dated and delivered on the Representation Date, in form reasonably satisfactory
to the Manager to the effect that the statements contained in the certificate referred to in Section 6 of this Agreement which
were last furnished to the Manager are true and correct at the Representation Date, as though made at and as of such date (except
that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 6, modified
as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the date of delivery of
such certificate.


 






    	 	29	 



     


    

 


(l)                
Bring Down Opinions; Negative Assurance. At each Representation Date, unless waived by the Manager, the Company shall
furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of corporate counsel
to the Company (“Company Counsel”) and a written opinion of intellectual property counsel to the Company (“Intellectual
Property Counsel”), each addressed to the Manager and dated and delivered on such Representation Date, in form and substance
reasonably satisfactory to the Manager, including a negative assurance representation. In lieu of delivering such an opinion for
Representation Dates subsequent to the commencement of the offering of the Shares under this Agreement, such counsel may furnish
the Manager with a letter to the effect that the Manager may rely on a prior opinion delivered under Section 6(b) or this Section
4(l) 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 such subsequent Representation Date).
The requirement to furnish or cause to be furnished an opinion under this Section 4(l) shall be waived for any Representation Date
other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company
files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests
the deliverables required this Section 4(l) in connection with a Representation Date, upon which request such deliverable shall
be deliverable hereunder.


 


(m)            
Auditor Bring Down “Comfort” Letter. At each Representation Date, unless waived by the Manager, the Company
shall cause (1) each of BDO and EY (together, the “Accountants”), or other independent accountants satisfactory
to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to
furnish the Manager a certificate, in each case dated on such Representation Date, in form satisfactory to the Manager, of the
same tenor as the letters and certificate referred to in Section 6 of this Agreement but modified to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate; provided, however,
that the Company will not be required to cause the Accountants to furnish such letters to the Manager in connection with the filing
of a Current Report on Form 8-K unless (i) such Current Report on Form 8-K is filed at any time during which a prospectus relating
to the Shares is required to be delivered under the Act and (ii) the Manager has requested such letter based upon the event or
events reported in such Current Report on Form 8-K. The requirement to furnish or cause to be furnished a “comfort”
letter under this Section 4(m) shall be waived for any Representation Date other than a Representation Date on which a material
amendment to the Registration Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material
amendment thereto under the Exchange Act, unless the Manager reasonably requests the deliverables required this Section 4(m) in
connection with a Representation Date, upon which request such deliverable shall be deliverable hereunder.


 






    	 	30	 



     


    

 


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


 


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


 


(p)              
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports
on Form 10-Q, as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company
and the compensation paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter;
and, if required by any subsequent change in Commission policy or request, more frequently by means of a Current Report on Form
8-K or a further Prospectus Supplement.


 


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


 


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


 






    	 	31	 



     


    

 


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


 


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


 


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


 


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


 


(w)            
Filing of Prospectus Supplement. In the event any sales are made pursuant to this Agreement which are NOT made in
 “at the market” offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms
Agreement, the Company shall file a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold,
the price thereof, the Manager’s compensation, and such other information as may be required pursuant to Rule 424 and Rule
430B, as applicable, within the time required by Rule 424.


 


(x)              
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of
the Shares as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional
shares of Common Stock necessary to complete such sales of the Shares and shall cause such registration statement to become effective
as promptly as practicable. After the effectiveness of any such registration statement, all references to “Registration
Statement” included in this Agreement shall be deemed to include such new registration statement, including all documents
incorporated by reference therein pursuant to Item 12 of Form S-3, and all references to “Base Prospectus”
included in this Agreement shall be deemed to include the final form of prospectus, including all documents incorporated therein
by reference, included in any such registration statement at the time such registration statement became effective.


 






    	 	32	 



     


    

 


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


 


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


 






    	 	33	 



     


    

 


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


 


(b)              
Delivery of Opinions. The Company shall have caused the Company Counsel to furnish to the Manager its opinion and
negative assurance statement, dated as of such date on which it is delivered and addressed to the Manager in form and substance
acceptable to the Manager, and the Company shall have caused the Intellectual Property Counsel to furnish to the Manager its opinion
and negative assurance statement, dated as of such date on which it is delivered and addressed to the Manager in form and substance
acceptable to the Manager.


 


(c)              
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager
a certificate of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer
of the Company, dated as of such date on which it is delivered, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any Prospectus Supplement and any documents incorporated by reference therein
and any supplements or amendments thereto and this Agreement and that:


 


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


 


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


 


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


 






    	 	34	 



     


    

 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


The documents required
to be delivered by this Section 6 shall be delivered to the office of Sichenzia Ross Ference LLP, counsel for the Manager, at 1185
Avenue of the Americas, 37th Floor, New York, New York 10036, on each such date as provided in this Agreement.


 


7.                 
Indemnification and Contribution.


 


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


 






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


 


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


 






    	 	37	 



     


    

 


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


 






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8.                 
Termination.


 


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


 


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


 


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


 


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


 


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


 






    	 	39	 



     


    

 


 


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


 


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


 


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


 


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


 


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


 






    	 	40	 



     


    

 


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


 


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


 


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


 


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


 


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


         


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


 


 


Very truly yours,


 


BIO-PATH
HOLDINGS, INC.


 





	By:	/s/ Peter H. Nielsen	 



Name: Peter H. Nielsen


Title: President and Chief Executive Officer


 


Address for Notice:


 


Bio-Path Holdings, Inc.


4710 Bellaire Boulevard, Suite 210


Bellaire, Texas 77401


Attn: Chief Executive Officer


  


The foregoing Agreement is hereby confirmed and
accepted as of the date first written above.


 


H.C. WAINWRIGHT & CO., LLC


  


	By:	/s/ Mark W. Viklund	 





Name: Mark W. Viklund


Title: Chief Executive Officer




 


Address for Notice:


 






    	 	42	 



     


    

 


 


 


Form of Terms Agreement


ANNEX I 


BIO-PATH HOLDINGS, INC. TERMS AGREEMENT


 


Dear Sirs:


 


           Bio-Path
Holdings, Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The
Market Offering Agreement, dated July ___, 2020 (the “At The Market Offering Agreement”), between the Company
and H.C. Wainwright & Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the
Schedule I hereto (the “Purchased Shares”).


 


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


 


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


 


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


 




    	 	43	 



     


    


 


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


 


BIO-PATH
HOLDINGS, INC.


  


	By:	 	 
	 	Name:	 
	 	Title:	 


 









 


ACCEPTED as of the date first written above.


 


H.C. WAINWRIGHT & CO., LLC


 





	By:	 	 
	 	Name:	 
	 	Title:	 





 






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