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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of Report (Date of earliest event reported): May 31, 2024
InspireMD,
Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-35731 |
|
26-2123838 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
4
Menorat Hamaor St.
Tel
Aviv, Israel |
|
6744832 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
(888)
776-6804
(Registrant’s
telephone number, including area code)
N/A
(Former
Name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ☐ |
Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of exchange on which registered |
| Common Stock, par value
$0.0001 per share |
|
NSPR |
|
The Nasdaq Capital Market
|
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 |
Entry into a Material
Definitive Agreement. |
On
May 31, 2024, InspireMD, Inc. (the “Company”) entered into an Equity Distribution Agreement (the “Distribution
Agreement”) with Piper Sandler & Co., as sales agent (“Piper Sandler”), pursuant to which the Company may offer
and sell (the “Offering”), from time to time, at its option, through or to Piper Sandler shares of the Company’s common
stock, $0.0001 par value per share (the “Shares”). Pursuant to the prospectus supplement relating to the Offering, dated
as of May 31, 2024 (the “Prospectus Supplement”), the Company may offer and sell
up to $17,000,000 of Shares.
Any
Shares to be offered and sold under the Distribution Agreement will be issued and sold pursuant to the Company’s Registration Statement
on Form S-3 (File No. 333-265409), filed with the Securities and Exchange Commission (the “SEC”) on June 3, 2022, and declared
effective by the SEC on June 14, 2022, and the related prospectus contained therein (the “Registration Statement”), as supplemented
by the Prospectus Supplement, by any method permitted by law deemed to be an “at the market offering” as defined in Rule
415(a)(4) promulgated under the Securities Act of 1933, as amended, and, subject to the terms of any placement notice under the Distribution
Agreement, Piper Sandler may also sell Shares in negotiated transactions at market prices prevailing at the time of sale or at prices
related to such prevailing market prices and/or any other method permitted by law, subject to the prior written consent of the Company.
Subject
to the terms of the Distribution Agreement, Piper Sandler will use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable state and federal laws, rules and regulations and the rules of The Nasdaq Capital Market to sell the
Shares from time to time, based upon the Company’s instructions (including any price, time or size limits or other customary parameters
or conditions the Company may impose). The Company cannot provide any assurances that it will issue any Shares pursuant to the Distribution
Agreement. The Company will pay Piper Sandler a commission at a fixed rate of 3.0% of the aggregate gross proceeds from each sale of
the Shares under the Distribution Agreement. The Company has agreed to provide Piper Sandler with customary indemnification rights with
respect to certain liabilities, including liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended.
The
Company currently intends to use any net proceeds from the Offering for our operations, including, but not limited to, research
and development, sales and marketing, and working capital and other general corporate purposes, and any other purposes that may
be stated in any future prospectus supplement.
The
foregoing description of the Distribution Agreement does not purport to be complete and is qualified in its entirety by reference to
the full text of the Distribution Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference
into this Item 1.01. A copy of the opinion of Greenberg Traurig, LLP relating to the legality of the securities is filed as Exhibit 5.1
to this Current Report on Form 8-K and incorporated by reference into this Item 1.01.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares, nor shall there be
any offer, solicitation or sale of the Shares in any state or country in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state or country.
As
previously disclosed, on June 3, 2022, the Company entered into a Sales Agreement (the “AGP Sales Agreement”) with A.G.P./Alliance
Global Partners, as sales agent (“A.G.P.”), with respect to the issuance and sale of
up to $8,313,000 of Shares, from time to time in an “at the market offering” registered pursuant the Company’s Registration
Statement (the “Prior ATM Offering”).
Effective
as of May 31, 2024, the Company terminated (i) the AGP Sales Agreement and (ii) the Prior ATM Offering. The Company is not subject
to any termination penalties related to the termination of the AGP Sales Agreement. The Company did not sell any shares of common stock
pursuant to the AGP Sales Agreement. As a result of the termination of the AGP Sales Agreement, the Company will not offer or sell any
shares under the Prior ATM Offering.
A
copy of the AGP Sales Agreement
was filed as Exhibit 1.2 to the Registration Statement. The description of the AGP Sales Agreement
contained in this Current Report on Form 8-K does not purport to be complete and is qualified in its entirety by reference to the copy
of the AGP Sales Agreement filed as Exhibit 1.2 to the Registration Statement.
| Item 9.01 |
Financial
Statements and Exhibits. |
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
| |
InspireMD, Inc. |
| |
|
| Date: May 31, 2024 |
By: |
/s/
Craig Shore |
| |
Name: |
Craig Shore |
| |
Title: |
Chief Financial Officer |
Exhibit
5.1
May
31, 2024
InspireMD,
Inc.
4
Menorat Hamaor St.
Tel
Aviv
Israel
6744832
Re:
InspireMD, Inc.
Ladies
and Gentlemen:
We
have acted as special counsel to InspireMD, Inc., a Delaware corporation (the “Company”), in connection with the sale from
time to time by the Company pursuant to the Equity Distribution Agreement executed by the Company Piper Sandler & Co. on May 31,
2024 (the “Distribution Agreement”), of shares of the Company’s common stock, par value $0.01 per share (“Common
Stock”), having an aggregate offering price of up to $17,000,000 (the “ATM Shares”). The ATM Shares will be
issued pursuant to a registration statement on Form S-3 (Registration No. 333-265409), filed by the Company with the Securities and Exchange
Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), the base prospectus
contained therein, and the prospectus supplement dated May 31, 2024 filed with the SEC pursuant to Rule 424(b) under the Securities Act
(the “Prospectus Supplement”, and together with the base prospectus, the “Prospectus”).
In
rendering our opinions set forth below, we have reviewed the Registration Statement and the Prospectus Supplement and the exhibits thereto.
We have also reviewed such corporate documents and records of the Company, such certificates of public officials and officers of the
Company and such other matters as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed:
(i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents
submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in
the instruments, documents, certificates and records we have reviewed; and (iv) the legal capacity for all purposes relevant hereto of
all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties
had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such
parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to any facts material
to the opinions expressed herein that were not independently established or verified, we have relied upon oral or written statements
and representations of officers and other representatives of the Company.
May
31, 2024
Page
2
Based
upon, subject to and limited by the foregoing, we are of the opinion that, as of the date hereof:
1.
When the ATM Shares have been issued and sold in accordance with the Distribution Agreement, and as described in the Registration Statement
and Prospectus, the ATM Shares will be validly issued, fully paid and nonassessable.
The
opinions set forth above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors; (ii) the effect of general principles of equity, including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement
is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought;
and (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification
of, or contribution to, a party with respect to liability where such indemnification or contribution is contrary to public policy. We
express no opinion concerning the enforceability of any waiver of rights or defenses with respect to stay, extension or usury laws.
We
express no opinion as to the applicability of, compliance with or effect of the laws of any jurisdiction other than the General Corporation
Law of the State of Delaware and, to the extent relevant to the opinions expressed herein, the laws of the State of New York.
We
hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm therein
and in the Prospectus under the caption “Legal Matters.” In giving our consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
This
opinion speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance
of any kind, including any change of law or fact, that may occur after the date of this opinion that might affect the opinions expressed
therein.
| |
Very
truly yours, |
| |
|
| |
/s/
Greenberg Traurig, LLP |
Exhibit
10.1
Execution
Version
INSPIREMD,
INC.
EQUITY
DISTRIBUTION AGREEMENT
May
31, 2024
PIPER
SANDLER & CO.
U.S.
Bancorp Center
800
Nicollet Mall
Minneapolis,
Minnesota 55402
Ladies
and Gentlemen:
As
further set forth in this agreement (this “Agreement”), InspireMD, Inc., a Delaware corporation (the “Company”),
proposes to issue and sell from time to time through Piper Sandler & Co. (the “Agent”), as sales agent,
the Company’s common stock, par value $0.0001 per share (the “Common Stock”) (such shares of Common Stock
to be sold pursuant to this Agreement, the “Shares”) on terms set forth herein. Notwithstanding anything to
the contrary contained herein, the parties hereto agree that compliance with the limitation set forth in Section 2 of this Agreement
on the number of Shares issued and sold under this Agreement shall be the sole responsibility of the Company, and the Agent shall have
no obligation in connection with such compliance.
The
Company hereby confirms its agreement with the Agent with respect to the sale of the Shares.
1.
Representations and Warranties of the Company.
(a)
The Company represents and warrants to, and agrees with, the Agent that as of the date of this Agreement, each Representation Date (as
defined in Section 3(o) below), each date on which a Placement Notice (as defined in Section 2(a)(i) below) is given (each, a “Notice
Date”), each date on which Shares are sold hereunder (each, an “Applicable Time”), and each Settlement
Date (as defined in Section 2(a)(vii) below) as follows:
(i)
Registration Statement and Prospectus. The Company has filed, in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations thereunder (collectively, the “Securities Act”), with the Securities
and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-265409), including
a base prospectus, relating to certain securities, including the Common Stock, to be issued from time to time by the Company, and which
incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company
has prepared a prospectus supplement to the base prospectus included as part of such registration statement specifically relating to
the Shares (the “Prospectus Supplement”). The Company has furnished to the Agent, for use by Agent, copies
of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Shares.
The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related
prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Shares. Except where
the context otherwise requires, such registration statement, as amended when it became effective, including all documents filed as part
thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently
filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant
to Rule 430B or 462(b) of the Securities Act, is herein called the “Registration Statement.” The base prospectus,
including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus
Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus,” as defined
in Rule 433 of the Securities Act (“Rule 433”), relating to the Shares, if any, that (i) is required to be
filed with the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed
or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the
Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein,
and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission
deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus
or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant the Electronic Data
Gathering Analysis and Retrieval System (“EDGAR”).
(ii)
Continuing Effectiveness of Registration Statement. The Registration Statement and any Rule 462(b) Registration Statement have
been declared effective by the Commission under the Securities Act. The Company has complied or will comply, to the Commission’s
satisfaction, with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the knowledge of the Company, contemplated or threatened by the Commission. The Company meets the requirements
for use of Form S-3 under the Securities Act. The sale of the Shares hereunder meets the requirements of General Instruction I.B.6 of
Form S-3.
(iii)
No Material Misstatements or Omissions. The Prospectus when filed complied, and as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement,
the Prospectus and any post-effective amendments or supplements thereto, at the time it became effective or its date, as applicable,
and as of each Settlement Date (as defined in Section 2(a)(vii) below), complied in all material respects with the Securities Act, and
as of each effective date and each Settlement Date, did not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended
or supplemented, as of its date, did not and, as of each of the Settlement Date, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not apply
to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective amendment
thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating
to the Agent furnished to the Company in writing by the Agent expressly for use therein. There are no contracts or other documents required
to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as
required.
(iv)
Eligible Issuer. The Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of
the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares
contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows”
(as defined in Rule 433 under the Securities Act) related to the offering of the Shares contemplated hereby is solely the property of
the Company.
(v)
Financial Statements. The historical financial statements (including the related notes and supporting schedules) to be included
or incorporated by reference, in the Registration Statement, and the Prospectus comply as to form in all material respects with the requirements
of Regulation S-X under the Securities Act (“Regulation S-X”) and present fairly the financial condition, results
of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared
in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods
involved. All disclosures contained in the Registration Statement and Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of
Regulation S-K of the Act, to the extent applicable. There are no financial statements (historical or pro forma) that are required to
be included in the Registration Statement or the Prospectus that are not so included as required.
(vi)
No Off-Balance Sheet Transactions. There are no transactions, arrangements and other relationships between and/or among the Company,
and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structural
finance, special purpose or limited purpose entity (each, an “Off-Balance Sheet Transaction”) that could reasonably
be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources, including
those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), and are required to be described in the Prospectus,
which have not been described as required.
(vii)
Auditor Independence. Kesselman & Kesselman, Certified Public Accountants, a member of PricewaterhouseCoopers International
Limited, or other independent accountants reasonably satisfactory to the Agent (the “Accountants”), who have
audited certain financial statements of the Company and its consolidated subsidiaries, whose report is incorporated by reference in the
Registration Statement and the Prospectus, are independent public accountants as required by the Securities Act and the Public Accounting
Oversight Board.
(viii) No
Material Adverse Effect. The Company and each of its “significant subsidiaries” as defined under Rule 102(w) of
Regulation S-X (the “Subsidiaries”) (a complete list of the Subsidiaries is listed in Exhibit 21.1 to the
Company’s most recent Annual Report on Form 10-K) has been duly organized, validly existing as a corporation and in good
standing under the laws of their respective jurisdictions of organization. The Company and each of its Subsidiaries are, and will
be, duly licensed or qualified as a foreign corporation for transaction of business and in good standing under the laws of each
other jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires
such license or qualification, and have all corporate power and authority necessary to own or hold their respective properties and
to conduct their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to be
so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a Material
Adverse Effect. “Material Adverse Effect” shall mean any material adverse change or effect, or any
development that would reasonably be expected to result in a material adverse change or effect, on or affecting (i) the business,
earnings, assets, liabilities, prospects, condition (financial or otherwise), operations, general affairs, financial position,
stockholders’ equity or results of operations of the Company and the Subsidiaries taken as a whole, or (ii) the ability of the
Company to perform its obligations under this Agreement, including the issuance and sale of the Shares, or to consummate the
transactions contemplated in the Prospectus. Except as set forth in the Registration Statement and Prospectus, as of the date
hereof, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K except for subsidiaries that in
the aggregate would not constitute a “significant subsidiary” (as defined in Rule 405 under the Securities Act).
(ix)
Capitalization. The Company has an authorized capitalization as set forth in each of the Registration Statement and the Prospectus,
and all of the issued shares of the Company have been duly authorized and validly issued, are fully paid and non-assessable, conform
in all material respects to the description thereof contained in the Registration Statement and the Prospectus and were not issued in
violation of any preemptive right, resale right, right of first refusal or similar right. All of the Company’s options, warrants
and other rights to purchase or exchange any securities for shares of the Company’s capital stock have been duly authorized and
validly issued, and conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus.
All of the issued shares of capital stock or other ownership interest of each subsidiary of the Company have been duly authorized and
validly issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except for such liens, encumbrances, equities or claims as would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
(x)
Due Authorization, Valid Issuance and Non-Assessiblity of Shares. The Shares to be issued and sold by the Company to the Agent
hereunder have been duly authorized and, upon payment and delivery in accordance with this Agreement, will be validly issued, fully paid
and non-assessable, will conform in all material respects to the description thereof contained in the Registration Statement and the
Prospectus, will be issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive
rights, rights of first refusal and similar rights except as otherwise described in the Registration Statement and the Prospectus.
(xi)
Authority to Enter into this Agreement. The Company has all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(xii)
Non-Contravention. The issue and sale of the Shares, the execution, delivery and performance of this Agreement by the Company,
the consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Shares as described
under “Use of Proceeds” in the Registration Statement and the Prospectus will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company
and its subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; (ii) result in any violation
of the provisions of the articles of association, charter or by-laws (or similar organizational documents) of the Company or any of its
subsidiaries; or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets, except, with respect
to clauses (i) and (iii), for such conflicts, breaches, violations, liens, charges, encumbrances or defaults that would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(xiii)
No Consent or Approval Required. No consent, approval, authorization or order of, or filing, registration or qualification with,
any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or
assets is required for the issue and sale of the Shares, the execution, delivery and performance of this Agreement by the Company, the
consummation of the transactions contemplated hereby, the application of the proceeds from the sale of the Shares as described under
“Use of Proceeds” in the Registration Statement and the Prospectus, except for (i) the registration of the Shares under the
Securities Act; (ii) such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under
the Exchange Act, and applicable state or foreign securities laws and/or the bylaws and rules of the Financial Industry Regulatory Authority
(the “FINRA”) in connection with the sale of the Shares by the Agent; and (iii) the inclusion of the Shares
on The Nasdaq Capital Market (the “Exchange”).
(xiv)
Internal Controls. The Company and each of its subsidiaries maintain a system of “internal controls over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) designed to provide reasonable assurances regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the
United States, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to
permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles in the United
States and to maintain accountability for its assets, (iii) access to the Company’s assets is permitted only in accordance with
management’s general or specific authorization, (iv) the recorded accountability for the Company’s assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any differences, and (v) the interactive data
in eXtensible Business Reporting Language (“xBRL”) included or incorporated by reference in the Registration
Statement and the Prospectus fairly present the information called for in all material respects and are prepared in accordance with the
Commission’s rules and guidelines applicable thereto. Except as disclosed in the Registration Statement or the Prospectus, as of
the date of the most recent balance sheet of the Company and its consolidated subsidiaries audited by the Accountants, there were no
“material weaknesses” (each as defined by the Public Company Accounting Oversight Board) in the Company’s internal
controls over financial reporting, or any fraud, whether or not material, that involves management or other employees of the Company
and its subsidiaries who have a significant role in the Company’s internal controls; and except as disclosed in the Registration
Statement or the Prospectus, since the end of the latest audited fiscal year, there has been no change in the Company’s internal
control over financial reporting (whether or not remediated) that has materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial reporting. The Company’s board of directors has, subject to the exceptions,
cure periods and the phase in periods specified in The Nasdaq Stock Market rules (“Exchange Rules”), validly
appointed an audit committee to oversee internal accounting controls whose composition satisfies the applicable requirements of the Exchange
Rules and the Company’s board of directors and/or the audit committee has adopted a charter that satisfies the requirements of
the Exchange Rules.
(xv)
Disclosure Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures”
(as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed
to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness
of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(xvi)
[Reserved].
(xvii)
Sarbanes-Oxley Compliance. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any
of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith that are applicable to the Company or its directors or officers
in their capacities as directors or officers of the Company.
(xviii)
[Reserved].
(xix)
Valid Title. Except as would not reasonably be expected to result in a Material Adverse Effect, the Company and each of its subsidiaries
have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them,
that are material to the business of the Company, in each case free and clear of all liens, encumbrances and defects, except such liens,
encumbrances and defects 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 its subsidiaries. Except as would not reasonably be expected to result in a Material
Adverse Effecte, all assets held under lease by the Company and its subsidiaries, that are material to the business of the Company, are
held by them under valid, subsisting and enforceable leases, with such exceptions as do not materially interfere with the use made and
proposed to be made of such assets by the Company and its subsidiaries.
(xx)
Intellectual Property. Except as would not reasonably be expected to result in a Material Adverse Effect, the Company and each
of its subsidiaries owns, possesses, or can acquire on reasonable terms, all Intellectual Property necessary for the conduct of the Company’s
and it subsidiaries’ business as now conducted or as proposed to be conducted, as described in the Registration Statement and the
Prospectus to be conducted. Furthermore, except as would not reasonably be expected to result in a Material Adverse Effect, (A) to the
knowledge of the Company, there is no infringement, misappropriation or violation by third parties of any such Intellectual Property;
(B) there is no pending or, to the knowledge of the Company, threatened, action, suit, proceeding or claim by others challenging the
Company’s or any of its subsidiaries’ rights in or to any such Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (C) the Intellectual Property owned by the Company and its subsidiaries, and
to the knowledge of the Company, the Intellectual Property licensed to the Company and its subsidiaries, has not been adjudged invalid
or unenforceable, in whole or in part, and there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (D) there is no pending or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by others that the Company or any of its subsidiaries infringes, misappropriates or otherwise violates any Intellectual
Property or other proprietary rights of others, neither the Company or any of its subsidiaries has received any written notice of such
claim and the Company is unaware of any other fact which would form a reasonable basis for any such claim; (E) to the Company’s
knowledge, no employee of the Company or any of its subsidiaries is in or has ever been in violation of any term of any employment contract,
patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement
or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment
with the Company nor any of its subsidiaries or actions undertaken by the employee while employed with the Company or any of its subsidiaries;
(F) there is no prior art or public or commercial activity of which the Company is aware that may render any patent included in the Intellectual
Property invalid or that would preclude the issuance of any patent on any patent application included in the Intellectual Property, which
has not been disclosed to the U.S. Patent and Trademark Office or the relevant foreign patent authority, as the case may be; (G) to the
Company’s knowledge, the issued patents included in the Intellectual Property are valid and enforceable and the Company is unaware
of any facts that would preclude the issuance of a valid and enforceable patent on any pending patent application included in the Intellectual
Property; (H) the Company has taken reasonable steps necessary to secure the interests of the Company in the Intellectual Property purported
to be owned by the Company from all employees, consultants, agents or contractors that developed (in whole or in part) such Intellectual
Property; (I) no government funding, facilities or resources of a university, college, other educational institution or research center
was used in the development of any Intellectual Property that is owned or purported to be owned by the Company that would confer upon
any governmental agency or body, university, college, other educational institution or research center any claim or right in or to any
such Intellectual Property; and (J) to the Company’s knowledge, none of the technology employed by the Company has been obtained
or is being used by the Company in violation of the rights of any entity. “Intellectual Property” shall mean
all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions,
trade secrets, domain names, technology, know-how and other intellectual property in the United States and foreign jurisdictions.
(xxi)
Health Care Authorizations. Except as would not reasonably be expected to result in a Material Adverse Effect, (A) the Company
has submitted and possesses, or qualifies for applicable exemptions to, such valid and current registrations, listings, approvals, clearances,
licenses, certificates, authorizations or permits and supplements or amendments thereto issued or required by the appropriate state,
federal or foreign regulatory authorities or bodies, or otherwise required by applicable Health Care Laws (as defined below), necessary
to conduct their business (“Permits”), including, without limitation, all such Permits required by applicable
European Union and the national legislation of individual European Union Member States the U.S. Food and Drug Administration (the “FDA”),
the U.S. Department of Health and Human Services (“HHS”), the U.S. Centers for Medicare & Medicaid Services
(“CMS”), Health Canada or any other comparable state, federal or foreign authority or bodies to which it is
subject (B) the Company is in material compliance with the terms of all Permits granted by the appropriate state, federal or foreign
regulatory authorities or bodies, or otherwise required by applicable Health Care Laws, including, but not limited to CE Certificates
of Conformity and EU Declarations of Conformity. All Permits are in full force and effect and the Company is not in violation of any
term or conditions of any Permit. Except as would not reasonably be expected to result in a Material Adverse Effect, the Company has
fulfilled and performed all of its respective obligations with respect to the Permits and, no event, circumstance or state of facts has
occurred which allows, or after notice or lapse of time would allow, revocation, suspension or termination thereof. The Company has not
received any notice or is not otherwise aware of proceedings relating to the limitation, revocation, suspension, or modification of,
or non-compliance with, any such Permit, except for such Permits, the lack of which would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect. To the Company’s knowledge, each third party that is a manufacturer, contractor
or agent for the Company is in compliance in all material respects with all Permits required by all Health Care Laws insofar as they
reasonably pertain to the Company, the Company’s products or activities.
(xxii)
Compliance with Health Care Laws. Except as would not reasonably be expected to result in a Material Adverse Effect: (A) the Company
and each of its Subsidiaries and, to the Company’s knowledge, their respective directors, employees and agents (while acting in
such capacity) (i) are and at all times have been in compliance with, all Health Care Laws applicable to the Company, or any of its devices
or activities, including, but not limited to, the rules and regulations of the FDA, the HHS, the CMS, the U.S. Department of Justice
and any other state, federal, national, regional, provincial, local or foreign or other governmental authority or instrumentality, legislative
body, court, administrative agency, regulatory body or authority, commission or instrumentality, including any supra-national or multinational
authority having governmental or quasi-governmental powers, or any other industry self-regulatory authority having jurisdiction over
the Company or any of its products or activities (“Governmental Authority”), including but not limited to European
Union and European Union Member State’s rules governing medical devices, including but not limited to Directive 93/42 on Medical
Devices, Regulation 2017/745 on Medical Devices, the federal Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the Anti-Inducement
Law (42 U.S.C. Section 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. Section 3729 et seq.), the administrative False Claims
Law (42 U.S.C. Section 1320a-7b(a)), the Stark law (42 U.S.C. Section 1395nn), the Health Insurance Portability and Accountability Act
of 1996 (42 U.S.C. Section 1320d et seq.) as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C.
Section 17921 et seq.), the exclusion laws (42 U.S.C. Section 1320a-7), the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301
et seq.), the Controlled Substances Act (21 U.S.C. Section 801 et seq.), the Public Health Service Act (42 U.S.C. Section 201 et seq.),
Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), and the Patient Protection and Affordable
Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010, the regulations promulgated pursuant to such
laws, and any other applicable state, federal or foreign national or supranational law, accreditation standards, regulation, directive,
memorandum, opinion letter, or other issuance which imposes requirements on manufacturing, development, non-clinical, clinical testing,
production, analysis, certification, labeling, advertising, marketing, promotion, interactions with healthcare professionals, healthcare
organizations or patient organizations, distribution, importation, exportation, use, handling, quality sale, reporting, kickbacks, patient
or program charges, recordkeeping, claims process, documentation requirements, medical necessity, referrals, the hiring of employees
or acquisition of services or supplies from those who have been excluded from government health care programs, quality, safety, privacy,
security, licensure, accreditation or any other aspect of providing health care, clinical laboratory or diagnostics devices or services
(collectively, “Health Care Laws”), and (ii) have not engaged in any activities which are, as applicable, cause
for false claims liability, civil penalties, or mandatory or permissive exclusion from Medicare, Medicaid, or any other local, state,
federal or foreign equivalent healthcare program; (B) the Company has not received any notification, correspondence or any other written
or oral communication, including notification of any pending or threatened claim, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any Governmental Authority, including, without limitation, the FDA, the national competent authorities
of European Union Member States, European Union Notified Bodies, Health Canada, the U.S. Federal Trade Commission, the U.S. Drug Enforcement
Administration (“DEA”), CMS, HHS’s Office of Inspector General, the U.S. Department of Justice and state
Attorneys General or similar agencies or authorities of potential or actual non-compliance by, or liability of, the Company or any subsidiary
under any Health Care Laws; (C) the Company is in compliance with all applicable Health Care Laws applicable to the maintenance, compilation
and filing of reports and registration requirements; (D) the Company has filed, obtained, maintained, or submitted all reports, documents,
forms, notices, applications, records, claims, submissions, and supplements or amendments as required by any Applicable Health Care Laws
or Permits, and all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission) and remain complete and correct
in all material respects; and (E) all of the Company’s products are developed, investigated, manufactured, prepared, packaged,
tested, labeled and distributed in compliance in all material respects with the applicable Health Care Laws or any comparable Law. To
the Company’s knowledge, components supplied to the Company by third parties based on specifications provided by the Company are
manufactured by such third parties in accordance with such specifications in all material respects. All of the Company’s products,
including all components, packaging, labeling and promotional materials or oral representations for such products, comply in all material
respects with applicable Health Care Laws. To the Company’s knowledge, there are no facts or circumstances that would reasonably
be expected to give rise to material liability of the Company or any of its Subsidiaries under any Health Care Laws. The statements with
respect to Health Care Laws and the Company’s compliance therewith included in the Registration Statement and in the Prospectus
fairly summarize the matters therein described.
(xxiii)
Clinical Trials. The studies, tests and preclinical and clinical trials conducted by or on behalf of, or sponsored by, the Company,
or in which the Company has participated, that are described in the Registration Statement or the Prospectus, or the results of which
are referred to in the Registration Statement or the Prospectus, were and, if still pending, are being conducted in all material respects
in accordance with protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific standards for
devices comparable to those being developed by the Company and all applicable statutes, rules and regulations of the FDA, the European
Union and European Union Member States, Health Canada and other comparable regulatory agencies outside of the U.S. to which they are
subject, including, without limitation, 21 C.F.R. Parts 50, 54, 56, 58, and 812; the descriptions of the results of such studies, tests
and trials contained in the Registration Statement or the Prospectus do not contain any misstatement of a material fact or omit a material
fact necessary to make such statements not misleading; the Company has no knowledge of any studies, tests or trials not described in
the Registration Statement or the Prospectus the results of which would reasonably call into question in any material respect the results
of the studies, tests and trials described in the Registration Statement or Prospectus; and the Company has not received any notices
or other correspondence from the FDA, Health Canada or any other foreign, state or local governmental body exercising comparable authority
or any Institutional Review Board or comparable authority requiring, or threatening a clinical hold, termination, suspension or material
modification of any studies, tests or preclinical studies or clinical trials conducted by or on behalf of, or sponsored by, the Company
or in which the Company has participated, and, to the Company’s knowledge, there are no reasonable grounds for the same. Except
as disclosed in the Registration Statement and the Prospectus or as would not reasonably be expected to result in a Material Adverse
Effect, there has not been any violation of law or regulation by the Company in its respective device development efforts, submissions
or reports to any regulatory authority that could reasonably be expected to require investigation, corrective action or enforcement action.
(xxiv)
No Shutdowns or Prohibitions. Except as would not reasonably be expected to result in a Material Adverse Effect, the Company has
not had any device, clinical laboratory or manufacturing site (whether Company-owned or that of a third party manufacturer for the Company’s
devices) subject to a governmental authority (including FDA) shutdown or import or export prohibition, nor received any FDA Form 483
or other governmental authority notice of inspectional observations, “warning letters,” “untitled letters,” requests
to make changes to the Company’s devices, processes or operations, or similar correspondence or notice from the FDA or other governmental
authority alleging or asserting material noncompliance with any applicable Health Care Laws. To the Company’s knowledge, neither
the FDA nor any other governmental authority is considering such action.
(xxv)
No Safety Notices. (i) Except as disclosed in the Registration Statement and the Prospectus or as would not reasonably be expected
to result in a Material Adverse Effect, there have been no recalls, field notifications, field corrections, repairs, refunds, market
withdrawals or replacements, warnings, “dear doctor” letters, investigator notices, safety alerts or other notice of action
relating to an alleged lack of safety, efficacy, or regulatory compliance of the Company’s products, or detentions, withdrawals,
seizures, terminations or suspensions of manufacturing, or other adverse regulatory actions requested or threatened relating to the Company’s
products (“Safety Notices”) and (ii) to the Company’s knowledge, there are no facts that would be reasonably
likely to result in (x) a Safety Notice with respect to the Company’s products or services, (y) a change in the marketing classification
or in the labeling of any the Company’s respective devices or services, or (z) a termination or suspension of marketing or testing
of any the Company’s devices or services
(xxvi)
Absence of Settlement Agreements or Undertakings. Except as disclosed in the Registration Statement and the Prospectus, the Company
and its Subsidiaries are not a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders,
or similar agreements with or imposed by any governmental authority.
(xxvii)
Absence of Legal or Governmental Proceedings. Except as disclosed in the Registration Statement and the Prospectus, there are
no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject that, if determined adversely to the Company, would, in the aggregate, reasonably
be expected to result in a Material Adverse Effect; and to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or others. Additionally, neither the Company or its subsidiaries, officers or directors nor, to the Company’s
knowledge, any of their respective employees, independent contractors, affiliates or agents has been excluded, suspended or debarred
from participation in any U.S. federal health care program or human clinical research or other similar action that could reasonably be
expected to result in debarment, suspension or exclusion, or engaged in any conduct that would reasonably be expected to result in such
debarment, suspension, or exclusion.
(xxviii)
Material Contracts. There are no contracts or other documents required to be described in the Registration Statement or filed
as exhibits to the Registration Statement that are not described and filed as required. The statements made in the Registration Statement
and Prospectus, insofar as they purport to constitute summaries of the terms of the contracts and other documents described and filed,
constitute accurate summaries of the terms of such contracts and documents in all material respects. Except as disclosed in the Registration
Statement and the Prospectus, neither the Company nor any of its subsidiaries has knowledge that any other party to any such contract
or other document has any intention not to render full performance as contemplated by the terms thereof.
(xxix)
Insurance. The Company and each of its subsidiaries maintain insurance from reputable insurers in such amounts and covering such
risks as is commercially reasonable in accordance with customary practices for companies engaged in similar businesses and similar industries
for the conduct of their respective businesses. All policies of insurance of the Company and its subsidiaries are in full force and effect;
the Company and each of its subsidiaries are in compliance with the terms of such policies in all material respects; and neither the
Company nor any of its subsidiaries has received notice from any insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue such insurance; there are no material claims by the Company or
any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under
a reservation of rights clause; and neither the Company nor any such 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 at a cost that would not reasonably be expected to result in a Material Adverse Effect.
(xxx)
Related Party Disclosure. No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors,
officers, shareholders, customers or suppliers of the Company, on the other hand, that is required to be described in the Registration
Statement or the Prospectus which is not so described.
(xxxi)
No Labor Dispute. No labor disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or, to
the knowledge of the Company, is imminent that would reasonably be expected to result in a Material Adverse Effect.
(xxxii)
No Violation or Default. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of
its subsidiaries (i) is in violation of its articles of association, charter or by-laws (or similar organizational documents), (ii) is
in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement,
license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is
subject, or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii)
and (iii), to the extent any such conflict, breach, violation or default would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
(xxxiii)
Environmental Laws. Except as would not reasonable be expected to result in a Material Adverse Effect and except as disclosed
in the Registration Statement and the Prospectus, the Company and each of its subsidiaries (i) are, and at all times prior hereto were,
in compliance with all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of any governmental
authority, including without limitation any international, foreign, national, state, provincial, regional, or local authority, relating
to pollution, the protection of human health or safety, the environment, or natural resources, or to use, handling, storage, manufacturing,
transportation, treatment, discharge, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying with
all permits and authorizations and approvals required by Environmental Laws to conduct their respective businesses, and (ii) have not
received notice or otherwise have knowledge of any actual or alleged violation of Environmental Laws, or of any actual or potential liability
for or other obligation concerning the presence, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants.
Except as described in the Registration Statement and the Prospectus, (x) there are no proceedings that are pending, or to the Company’s
knowledge, threatened, against the Company or any of its subsidiaries under Environmental Laws in which a governmental authority is also
a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed,
(y) the Company and its subsidiaries are not aware of any issues regarding compliance with Environmental Laws, including any pending
or proposed Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances
or wastes, pollutants or contaminants, that would reasonably be expected to result in a Material Adverse Effect, and (z) none of the
Company and its subsidiaries anticipates material capital expenditures relating to Environmental Laws.
(xxxiv)
Taxes. The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed
through the date hereof, subject to permitted extensions, and have paid all taxes due, and no tax deficiency has been determined adversely
to the Company or any of its subsidiaries, nor does the Company have any knowledge of any tax deficiencies that have been, or would reasonably
be expected to be asserted against the Company, that would, in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(xxxv)
ERISA Compliance. Except as would not reasonably be expected to result in a Material Adverse Effect, (i) each “employee
benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”))
for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”))
would have any liability (each a “Plan”) has been maintained in compliance with its terms and with the requirements
of all applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a
statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no “reportable event”
(within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur that would result in a loss to the Company,
(B) no “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether
or not waived, has occurred or is reasonably expected to occur, (C) the fair market value of the assets under each Plan that is required
to be funded exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such
Plan), and (D) neither the Company or any member of its Controlled Group has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary
course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(c)(3)
of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred,
to the Company’s knowledge, whether by action or by failure to act, which would cause the loss of such qualification.
(xxxvi)
Accuracy of Statistical and Market Data. The statistical and market-related data included in the Registration Statement and the
Prospectus and the consolidated financial statements of the Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable in all material
respects.
(xxxvii)
Not an Investment Company. Neither the Company nor any of its subsidiaries is, and as of the applicable Settlement Date and, after
giving effect to the offer and sale of the Shares and the application of the proceeds therefrom as described under “Use of Proceeds”
in the Registration Statement and the Prospectus, none of them will be, (i) an “investment company” or a company “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment
Company Act”), and the rules and regulations of the Commission thereunder, or (ii) a “business development company”
(as defined in Section 2(a)(48) of the Investment Company Act).
(xxxviii)
[Reserved].
(xxxix)
Registration Rights. Except as disclosed in the Registration Statement and the Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the right to require the Company to file a registration statement
under the Securities Act with respect to any securities of the Company owned or to be owned by such person. There are no contracts, agreements
or understandings to require the Company to include any such securities in the securities proposed to be offered pursuant to this Agreement.
(xl)
No Other Brokers. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with
any person (other than this Agreement) that would give rise to a valid claim against any of them or the Agent for a brokerage commission,
finder’s fee or like payment in connection with the offering and sale of the Shares.
(xli)
No Integration. The Company has not sold or issued any securities that would be integrated with the offering of the Shares contemplated
by this Agreement pursuant to the Securities Act or the interpretations thereof by the Commission.
(xlii)
Absence of Stabilization or Manipulation. The Company and its affiliates have not taken, directly or indirectly, any action designed
to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price
of any security of the Company in connection with the offering of the Shares.
(xliii)
Exchange Act Registration and Listing of the Common Stock. The shares of Common Stock are registered pursuant to Section 12(b)
of the Exchange Act and listed on the Exchange; the Company has taken no action designed to, or reasonably likely to have the effect
of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange, nor has
the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing.
(xliv)
[Reserved].
(xlv)
[Reserved].
(xlvi)
No Unlawful Payments. Neither the Company nor any of its subsidiaries, nor any director or officer or, to the knowledge of the
Company, any employee, agent or other person associated with or acting on behalf of the Company or any of its subsidiaries, has (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated
or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption or anti-bribery
law (collectively, “Anti-Corruption Laws”); or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(xlvii)
Anti-Money Laundering Compliance. The operations of the Company and its subsidiaries are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any applicable
related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(xlviii)
OFAC.
(A)
Neither the Company nor any of its subsidiaries, nor any of their directors, officers, or affiliates nor, to the Company’s knowledge,
any employee or any agent acting behalf of the Company or any of its subsidiaries, is an individual or entity that is, or is owned or
controlled by an individual or entity that is:
(1)
the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the
United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), nor
(2)
located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, the
so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea and Syria).
(B)
Neither the Company nor any of its subsidiaries will, directly or indirectly, use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity:
(1)
to fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time
of such funding or facilitation, is the subject of Sanctions; or
(2)
in any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating
in the offering, whether as underwriter, advisor, investor or otherwise).
(C)
Since April 24, 2019 neither the Company nor any of its subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any
dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
(xlix)
No Taxes or Fees Due Upon Issuance. No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including
interest and penalties, are payable on or in connection with the issuance and sale of the Shares by the Company or the execution and
delivery of this Agreement.
(l)
No Immunity. Neither the Company nor any of its subsidiaries, nor any of their respective properties or assets, has any immunity
from the jurisdiction of any court or from any legal process (whether through service or notice, attachment to prior judgment, attachment
in aid of execution or otherwise) under the laws of any jurisdiction in which it is organized, headquartered or doing business.
(li)
No Legal, Accounting or Tax Advice. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax
or accounting advice in connection with the offering and sale of the Shares.
(lii)
Other Underwriting Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at
the market” or continuous equity transaction.
(liii)
Cybersecurity. Except as would not reasonably be expected to result in a Material Adverse Effect, the Company and its subsidiaries’
information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases
(collectively, “IT Systems”) are adequate for, and operate and perform as required in connection with the operation
of the business of the Company and its subsidiaries as currently conducted, free and clear of all bugs, errors, defects, Trojan horses,
time bombs, malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable physical,
technical and administrative controls, policies, procedures, and safeguards to maintain and protect their confidential information and
the integrity, continuous operation, redundancy and security of all IT Systems and data, including “Personal Data,” used
in connection with their businesses. “Personal Data” means (i) a natural person’s name, street address,
telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license number, passport
number, credit card number, bank information, or customer or account number; (ii) any information which would qualify as “personally
identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR
(as defined below); (iv) any information which would qualify as “protected health information” under the Health Insurance
Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively,
“HIPAA”); and (v) any other piece of information that allows the identification of such natural person, or
his or her family, or permits the collection or analysis of any data related to an identified person’s health or sexual orientation.
Except as would not reasonably be expected to result in a Material Adverse Effect, there have been no breaches, violations, outages or
unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty to
notify any other person, nor any incidents under internal review or investigations relating to the same. Except as would not reasonably
be expected to result in a Material Adverse Effect, the Company and its subsidiaries are presently in compliance with all applicable
laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection
of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(liv)
Compliance with Data Privacy Laws. Except as would not reasonably be expected to result in a Material Adverse Effect, the
Company and its subsidiaries are, and at all prior times were, in compliance with all applicable state and federal data privacy and security
laws and regulations, including without limitation HIPAA, and the Company and its subsidiaries have taken commercially reasonable actions
to prepare to comply with, and since May 25, 2018, have been and currently are in compliance with, the European Union General Data Protection
Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”). The Company
and its subsidiaries have at all times made all disclosures to users or customers required by applicable laws and regulatory rules or
requirements.
(lv)
[Reserved].
(lvi)
[Reserved].
(lvii)
[Reserved].
(lviii)
[Reserved].
(lix)
XBRL. The xBRL included or incorporated by reference in the Registration Statement and the Prospectus fairly present the information
called for in all material respects and are prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(lx)
Certificate as Representation and Warranty. Any certificate signed by any officer of the Company and delivered to the Agent or
the Agent’s counsel in connection with the offering of the Shares shall be deemed a representation and warranty by the Company
to the Agent as to the matters covered thereby.
2.
Purchase, Sale and Delivery of Shares.
(a)
At-the-Market Sales. On the basis of the representations, warranties and agreements herein contained, but subject to the terms
and conditions herein set forth, the Company agrees to issue and sell through the Agent as sales agent, and the Agent agrees to use its
commercially reasonable efforts to sell for and on behalf of the Company, the Shares on the following terms and conditions; provided,
however, that any obligation of the Agent to use such commercially reasonable efforts shall be subject to the continuing accuracy
of the representations and warranties of the Company herein, the performance by the Company of its covenants and obligations hereunder
and the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement. The Company acknowledges and agrees
that (i) there can be no assurance that the Agent will be successful in selling Shares, and (ii) the Agent will incur no liability or
obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to
use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Shares as required under
this Section 2.
(i)
Each time that the Company wishes to issue and sell the Shares hereunder (each, a “Placement”), it will notify
the Agent by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters in accordance with which it desires the Shares to be sold, which shall at a minimum include the number of Shares
to be issued, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in
any one Trading Day (as defined below) and any minimum price below which sales may not be made, a form of which containing such minimum
sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals
from the Company set forth on Schedule 2 (with a copy to each of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from the Agent set forth on Schedule 2, as such Schedule 2 may be amended
from time to time. The Placement Notice shall be effective upon receipt by the Agent unless and until (i) in accordance with the notice
requirements set forth in Section 2(a)(iii) of this Agreement, the Agent declines to accept the terms contained therein for any reason,
in its sole discretion, (ii) the entire amount of the Shares have been sold, (iii) the Company suspends or terminates the Placement Notice
in accordance with the notice requirements set forth in Section 2(a)(iii) below, (iv) the Company issues a subsequent Placement Notice
with parameters superseding those on the earlier dated Placement Notice, or (v) this Agreement has been terminated under the provisions
of Section 7. The amount of any commission or other compensation to be paid by the Company to the Agent in connection with the sale of
the Shares shall be calculated in accordance with the terms set forth in Section 2(a)(v) below. It is expressly acknowledged and agreed
that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement or any Shares unless and until
the Company delivers a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and
the terms of the Placement Notice, the terms of the Placement Notice will control. For the purposes hereof, “Trading Day”
means any day on which the Company’s Common Stock is able to be purchased and sold on the principal market on which the
Common Stock is listed or quoted.
(ii)
The Shares are to be sold by the Agent on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that
is a Trading Day.
(iii)
Notwithstanding the foregoing, the Company may instruct the Agent by telephone (confirmed promptly by email) not to sell the Shares if
such sales cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall
not authorize the issuance and sale of, and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any
Share at a price lower than any minimum price therefor designated from time to time by the Company’s Board of Directors or a duly
authorized committee thereof and notified to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other
party hereto by telephone (confirmed promptly by email), suspend the offering of the Shares, whereupon the Agent shall so suspend the
offering of Shares until further notice is provided to the other party to the contrary; 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. Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession
of material non-public information, the Company and the Agent agree that (i) no sale of Shares will take place, (ii) the Company shall
not request the sale of any Shares, and (iii) the Agent shall not be obligated to sell or offer to sell any Shares.
(iv)
Subject to the terms of the Placement Notice, the Agent may sell the Shares by any method permitted by law deemed to be an “at
the market offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on or through an Exchange
and/or any other method permitted by law. Subject to the terms of any Placement Notice, the Agent may also sell Shares in negotiated
transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or any other method
permitted by law, subject to the prior written consent of the Company.
(v)
The compensation to the Agent for sales of the Shares, as an agent of the Company, shall be 3.0% of the gross sales price of the Shares
sold pursuant to this Section 2(a), payable in cash (the “Sales Commission”). The remaining proceeds, after
further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, and
reimbursement of expenses that the Agent may be entitled to pursuant to Section 3(g), shall constitute the net proceeds to the Company
for such Shares (the “Net Proceeds”).
(vi)
The Agent will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company
set forth on Schedule 2),by 4:30 p.m. Central Time of the Trading Day on which it has made sales of Shares hereunder, setting
forth the number of Shares sold on such day, the volume-weighted average price of the Shares sold, and the Net Proceeds payable to the
Company.
(vii)
All Shares sold pursuant to this Section 2(a) will be delivered by the Company to the Agent for the account of the Agent, against payment
of the Net Proceeds therefor, by wire transfer of same-day funds payable to the order of the Company at the offices of Piper Sandler
& Co., U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota, or such other location as may be mutually acceptable, at 9:00
a.m. Central Time on the first Trading Day following the date on which such Shares are sold, or at such other time and date as the Agent
and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, each such time and date of delivery being herein referred
to as a “Settlement Date.” If the Agent so elects, delivery of the Shares may be made by credit through full
fast transfer to an account or accounts at The Depository Trust Company designated by the Agent. On each Settlement Date, the Agent will
deliver the Net Proceeds in same day funds to an account designated by the Company on, or prior to, such Settlement Date. The Company
agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to timely deliver duly authorized Shares
on a Settlement Date, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Section 5
hereto, it will (i) hold the Agent harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company, (ii) reimburse the Agent for any losses incurred by the
Agent attributable, directly or indirectly, to such default and (iii) pay to the Agent any commission or other compensation to which
the Agent would otherwise have been entitled absent such default.
(b)
Maximum Amount. Under no circumstances shall the aggregate number or aggregate value of the Shares sold pursuant to this Agreement
exceed: (i) the aggregate number and aggregate dollar amount of shares of Common Stock available for issuance and sale under the currently
effective Registration Statement (including any limit set forth in General Instruction I.B.6 thereof, if applicable), (ii) the aggregate
number of authorized but unissued shares of Common Stock that are available for issuance under the Company’s certificate of incorporation
or certificate of designation or (iii) the aggregate number or aggregate dollar amount of shares of Common Stock for which the Company
has filed any Prospectus Supplement in connection with the Shares (the lesser of (i), (ii) and (iii), the “Maximum Amount”).
(c)
No Association or Partnership. Nothing herein contained shall constitute the Agent as an unincorporated association or partner
with the Company.
(d)
Market Transactions by Agent. The Company acknowledges and agrees that the Agent has informed the Company that the Agent may,
to the extent permitted under the Securities Act, the Exchange Act and this Agreement, purchase and sell shares of Common Stock for its
own account while this Agreement is in effect, provided, that (i) no sale for its own account shall take place while a Placement
Notice is in effect (except to the extent the Agent may engage in sales of Shares purchased or deemed purchased from the Company as a
“riskless principal” or in a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to
any such purchases or sales by the Agent. The Company consents to the Agent trading in the Common Stock for the account of any of its
clients at the same time as sales of the Shares occur pursuant to this Agreement.
3.
Covenants of the Company. The Company covenants and agrees with the Agent as follows:
(a)
Amendments to Registration Statement and Prospectus. After the date of this Agreement and during any period in which a Prospectus
relating to any Shares is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company agrees that it will: (i) notify the Agent promptly of the
time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference or amendments not related
to the Shares, has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus related
to the Shares has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement (insofar
as it relates to the transactions contemplated hereby) or Prospectus or for additional information; (ii) prepare and file with the Commission,
promptly upon the Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, in the Agent’s
reasonable opinion, may be necessary or advisable in connection with the sale of the Shares by the Agent (provided, however, that
the failure of the Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s
right to rely on the representations and warranties made by the Company in this Agreement); (iii) not file any amendment or supplement
to the Registration Statement or Prospectus, other than documents incorporated by reference, relating to the Shares or a security convertible
into the Shares unless a copy thereof has been submitted to the Agent within a reasonable period of time before the filing and the Agent
has not reasonably objected thereto (provided, however, that (A) the failure of the Agent to make such objection shall not relieve
the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties
made by the Company in this Agreement), (B) the Company has no obligation to provide the Agent any advance copy of such filing or to
provide the Agent an opportunity to object to such filing if the filing does not name the Agent or does not relate to a Placement or
other transaction contemplated hereunder, and (C) the only remedy that the Agent shall have with respect to the failure by the Company
to provide the Agent with such copy or the filing of such amendment or supplement despite the Agent’s objection shall be to cease
making sales under this Agreement); (iv) furnish to the Agent at the time of filing thereof a copy of any document that upon filing is
deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR;
and (v) cause each amendment or supplement to the Prospectus, other than documents incorporated by reference, to be filed with the Commission
as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act.
(b)
Stop Order. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the issuance
or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension
of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose, and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such a stop order should be issued.
(c)
Continuing Amendments. During any period in which a Prospectus relating to the Shares is required to be delivered by the Agent
under the Securities Act with respect to any Placement or pending sale of the Shares, (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements imposed upon it by the
Securities Act, as from time to time in force, and to file on or before their respective due dates all reports (taking into account any
extensions available under the Exchange Act) and any definitive proxy or information statements required to be filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period
any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the
Securities Act, the Company will promptly notify the Agent to suspend the offering of Shares during such period and the Company will
promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement
or omission or effect such compliance.
(d)
Qualification of the Shares. The Company shall take or cause to be taken all necessary action to qualify the Shares for sale under
the securities laws of such jurisdictions as the Agent reasonably designates and to continue such qualifications in effect so long as
required for the distribution of the Shares, except that the Company shall not be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in any state. The Company shall promptly advise the Agent of the receipt
by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose.
(e)
Copies of Registration Statement and Prospectus. The Company will furnish to the Agent and counsel for the Agent copies of the
Registration Statement (which will include three complete manually signed copies of the Registration Statement and all consents and exhibits
filed therewith), the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such
quantities as the Agent may from time to time reasonably request.
(f)
Section 11(a). The Company will make generally available to its security holders as soon as practicable an earnings statement
(which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 promulgated thereunder.
(g)
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated,
will pay or cause to be paid (i) all expenses (including stock or transfer taxes and stamp or similar duties allocated to the respective
transferees) incurred in connection with the registration, issue, sale and delivery of the Shares, (ii) all expenses and fees (including,
without limitation, fees and expenses of the Company’s accountants and counsel) in connection with the preparation, printing, filing,
delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits
thereto), the Shares, the Prospectus and any amendment thereof or supplement thereto, and the producing, word-processing, printing, delivery,
and shipping of this Agreement and other underwriting documents or closing documents, including Blue Sky Memoranda (covering the states
and other applicable jurisdictions) and including the cost to furnish copies of each thereof to the Agent, (iii) all filing fees, (iv)
all fees and disbursements of the Agent’s counsel incurred in connection with the qualification of the Shares for offering and
sale by the Agent or by dealers under the securities or blue sky laws of the states and other jurisdictions which the Agent shall designate,
(v) the fees and expenses of any transfer agent or registrar, (vi) the filing fees and fees and disbursements of the Agent’s counsel
(such counsel fees not to exceed $15,000) incident to any required review and approval by FINRA of the terms of the sale of the Shares,
(vii) listing fees, if any, (viii) the cost and expenses of the Company relating to investor presentations or any “roadshow”
undertaken in connection with marketing of the Shares, and (ix) all other costs and expenses incident to the performance of its obligations
hereunder that are not otherwise specifically provided for herein. In addition to (iv) and (vi) above, the Company shall reimburse the
Agent for its out-of-pocket expenses, including reasonable fees and disbursements of the Agent’s counsel (A) in connection with
this Agreement, the Registration Statement, the Prospectus in an amount not to exceed $100,000, (B) $25,000 in connection with each Representation
Date (as defined below) involving the filing of a Form 10-K on which the Company is required to provide a certificate pursuant to Section
3(q) and a waiver does not apply and (C) $15,000 in connection with each other Representation Date on which the Company is required to
provide a certificate pursuant to Section 3(q) and a waiver does not apply.
(h)
Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares in the manner described in the Prospectus.
(i)
Restrictions on Future Sales. During the term of this Agreement, the Company will not, offer for sale, sell, contract to sell,
pledge, grant any option for the sale of, enter into any transaction which is designed to, or might reasonably be expected to, result
in the disposition of Common Stock (whether by actual disposition or effective economic disposition due to cash settlement or otherwise)
by the Company or any affiliate, or otherwise issue or dispose of, directly or indirectly (or publicly disclose the intention to make
any such offer, sale, pledge, grant, issuance or other disposition), any Common Stock or any securities convertible into or exchangeable
for, or any options or rights to purchase or acquire, Common Stock, or permit the registration under the Securities Act of any Common
Stock, such securities, options or rights, without giving the Agent at least two Trading Days’ prior written notice, except for:
(i) the registration of the Shares and the sales through the Agent pursuant to this Agreement, (ii) sales of shares through any dividend
reinvestment and stock purchase plan of the Company, (iii) sales of shares of restricted stock, restricted stock units, options or any
other securities granted pursuant to incentive or employee benefit or similar plans existing as of the date hereof, as such plans may
be amended, or under any inducement grant under Nasdaq Listing Rule 5635(c)(4), and the Common Stock or other securities issuable upon
the exercise of such outstanding options or other securities or vesting of such restricted stock units or other securities, (iv) the
issuance of shares pursuant to the exercise of any warrants, options, restricted stock units or the conversion of any other convertible
security, and (v) the issuance by the Company or any of its subsidiaries of securities in connection with any bona fide mergers, acquisitions,
joint ventures, licensing arrangements or any other similar non-capital raising transactions (including, but not limited to, the issuance
of securities by the Company in connection with an investment made as part of a bona fide commercial distribution or other similar arrangement)
(the foregoing, “Exempt Securities”); provided, however, in the case of this subsection (v), that the aggregate
number of Common Stock issued, or issuable pursuant to the conversion or exchange of shares convertible into or exchangeable for Common
Shares, under this subsection (v) does not exceed 10.0% of the aggregate number of Common Stock outstanding immediately prior to giving
effect to such issuance or sale without giving the Agent at least three Trading Days’ prior written notice specifying the nature
of the proposed sale and the date of such proposed sale, so as to permit the Agent to suspend activity under this Agreement for such
period of time as requested by the Company.
(j)
No Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to,
or which might reasonably be expected to cause or result in, or which constitutes: (i) the stabilization or manipulation of the price
of the Common Stock or any other security of the Company to facilitate the sale or resale of the Shares, (ii) a violation of Regulation
M. The Company shall notify the Agent of any violation of Regulation M by the Company or any of its subsidiaries or any of their respective
officers or directors promptly after the Company has received notice or obtained knowledge of any such violation. The Company shall not
invest in futures contracts, options on futures contracts or options on commodities, unless the Company is exempt from the registration
requirements of the Commodity Exchange Act, as amended (the “Commodity Act”), or otherwise complies with the
Commodity Act. The Company will not engage in any activities bearing on the Commodity Act, unless such activities are exempt from the
Commodity Act or otherwise comply with the Commodity Act.
(k)
No Other Broker. The Company will not incur any liability for any finder’s or broker’s fee or agent’s commission
in connection with the execution and delivery of this Agreement, or the consummation of the transactions contemplated hereby.
(l)
Timely Securities Act and Exchange Act Reports. During any prospectus delivery period, the Company will use its commercially reasonable
efforts to file on a timely basis with the Commission such periodic and special reports as required by the Securities Act and the Exchange
Act.
(m)
Internal Controls. The Company and its subsidiaries will maintain systems of “internal control over financial reporting”
(as defined under Rules 13a-15 and 15d-15 under the Exchange Act) that is designed to comply with the requirements of the Exchange Act
and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP, including, but not limited to, 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; (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; and (v) the interactive data in XBRL included or incorporated by references in the Registration Statement
and the Prospectus fairly present the information called for in all material respects and are prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(n)
Permitted Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior written consent of the
Agent, and the Agent severally represents and agrees that, unless it obtains the prior written consent of the Company, it has not made
and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined
in Rule 433 under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule
405 under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by the Company
and the Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that
it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping.
(o)
Representation Date and Opinions of Counsel. On or prior to the date of the first Placement Notice, and thereafter during the
term of this Agreement, each time the Company (A) files an amendment to the Registration Statement or Prospectus (other than relating
solely to the offering of securities other than the Shares); (B) files an annual report on Form 10-K under the Exchange Act or files
its quarterly reports on Form 10-Q under the Exchange Act; and (C) files a report on Form 8-K containing amended financial statements
(other than an earnings release to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure
pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties as discontinued operations in accordance with
Statement of Financial Accounting Standards No. 144) under the Exchange Act, (each of the dates in (A), (B) and (C) are referred to herein
as a “Representation Date”), within three Trading Days, upon request of the Agent, the Company shall cause:
(i)
Greenberg Traurig, LLP, counsel for the Company, to furnish to the Agent the opinion and negative assurance letter of such counsel, dated
the date such opinion and negative assurance letter is delivered and addressed to the Agent, in form and substance reasonably satisfactory
to the Agent; provided however, only a negative assurance letter of such counsel shall be required for each Representation Date subsequent
to the execution of this Agreement.
(ii)
Kligler & Associates Patent Attorneys Ltd., intellectual property and patent counsel for the Company, or other counsel reasonably
satisfactory to the Agent, to furnish to the Agent the opinion of such counsel, dated the date such opinion is delivered and addressed
to the Agent, in form and substance reasonably satisfactory to the Agent; provided however the opinion of such counsel shall only be
required on or prior to the date of the first Settlement Date.
(iii)
Greenberg Traurig, LLP, regulatory counsel for the Company, to furnish to the Agent the opinion of such counsel, dated as of such date
and addressed to the Agent, in form and substance reasonably satisfactory to the Agent, which may be included in the opinion furnished
pursuant to Section 3(o)(i).
Notwithstanding
the foregoing, the requirement to provide counsel opinions under this Section 3(o) shall be waived for any Representation Date occurring
at a time at which no Placement Notice is pending, which waiver shall continue until the date the Company delivers a Placement Notice
to the Agent. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when
the Company relied on such waiver and did not provide the Agent with opinions under this Section 3(o), then before the Agent sells any
Shares pursuant to Section 2(a), the Company shall cause the opinions (including the opinion pursuant to Section 3(o) if not delivered
on the date of the prior Form 10-K), comfort letter, certificates and documents that would be delivered on a Representation Date to be
delivered.
(p)
Representation Date and Comfort Letter. On or prior to the date of the first Placement Notice and thereafter during the term of
this Agreement, on each Representation Date to which a waiver does not apply as set forth above, upon request of the Agent, the Company
shall cause the Accountants to deliver to the Agent a letter, dated as of the date such letter is delivered and addressed to the Agent,
confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating the conclusions
and findings of said firm with respect to the financial information and other matters covered by its letter in form and substance reasonably
satisfactory to the Agent of the same tenor as the first such letter received hereunder.
(q)
Representation Date and Representation Certificate. On or prior to the date of the first Placement Notice and thereafter during
the term of this Agreement on each Representation Date to which a waiver does not apply as set forth above, upon request of the Agent,
the Company shall furnish to the Agent a certificate (the “Representation Certificate”), substantially in the
form of Schedule 3 hereto and dated as of the date of such certificate, addressed to the Agent and signed by the chief executive
officer and by the chief financial officer of the Company.
(r)
Disclosure of Shares Sold. The Company shall disclose in its quarterly reports on Form 10-Q and in its annual report on Form 10-K
the number of the Shares sold through the Agent under this Agreement, the net proceeds to the Company and the compensation paid by the
Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter.
(s)
Continued Listing of Shares. The Company shall use its commercially reasonable efforts to maintain the listing of the Common Stock
on the Exchange.
(t)
Notice of Changes. At any time during the term of this Agreement, as supplemented from time to time, the Company shall advise
the Agent as soon as practicable after it shall have received notice or obtained knowledge thereof, of any information or fact that would
alter or affect any opinion, certificate, letter or other document provided to the Agent pursuant to this Section 3.
(u)
Maximum Amount. The Company will not instruct the Agent to sell or otherwise attempt to sell Shares pursuant to this Agreement
in excess of the Maximum Amount.
(v)
CFO Certificate. If necessary and reasonably requested by the Agent during the term of this Agreement, on each Representation
Date to which a waiver does not apply, the Company shall furnish to the Agent a certificate, dated the date of such Representation Date
and addressed to the Agent, of its chief financial officer with respect to certain financial data contained in the Prospectus, providing
“management comfort” with respect to such information, in form and substance reasonably satisfactory to the Agent.
4.
Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy, as of the date
of this Agreement, each Representation Date, each Notice Date, each Applicable Time, and each Settlement Date (in each case, as if made
at such date) of and compliance with all representations, warranties and agreements of the Company contained herein, (ii) the performance
by the Company of its obligations hereunder and (iii) the following additional conditions:
(a)
Continuing Amendments; No Stop Order. If filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free
Writing Prospectus, is required under the Securities Act, the Company shall have filed the Prospectus (or such amendment or supplement)
or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance
on Rule 424(b)(8) or Rule 164(b) under the Securities Act); the Registration Statement shall be effective; no stop order suspending the
effectiveness of the Registration Statement or any part thereof, any registration statement filed pursuant to Rule 462(b) under the Securities
Act, or any amendment thereof, nor suspending or preventing the use of the Prospectus shall have been issued; no proceedings for the
issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be
included in the Registration Statement, the Prospectus or otherwise) shall have been complied with to the Agent’s reasonable satisfaction.
(b)
Absence of Certain Events. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any
of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or
supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that
purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification
of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence
of any event that makes any material statement made in the Registration Statement or the Prospectus or any material document incorporated
or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration
Statement, related Prospectus or such documents so that, in the case of the Registration Statement, it will not contain any materially
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading and, that in the case of the Prospectus, it will not contain any materially untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading
(c)
No Material Misstatement or Omission. The Agent shall not have advised the Company that the Registration Statement or any the
Prospectus, contains an untrue statement of fact which, in the Agent’s opinion, is material, or omits to state a fact which, in
the Agent’s opinion, is material and is required to be stated therein or necessary to make the statements therein, in the light
of the circumstances in which they were made (solely with respect to the Prospectus), not misleading.
(d)
No Adverse Changes. Except as disclosed or contemplated in the Prospectus, subsequent to the respective dates as of which information
is given in the Prospectus, there shall not have been any change in the capital stock (other than a change in the number of outstanding
shares of Common Stock due to the issuance of shares of Common Stock upon the exercise of outstanding options or warrants or other Exempt
Securities), or any development that would reasonably be expected to result in a Material Adverse Effect (whether or not arising in the
ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered
by insurance, incurred by the Company or any of its subsidiaries, the effect of which, in any such case described above, in the Agent’s
reasonable judgment, makes it impractical or inadvisable to offer or deliver the Shares on the terms and in the manner contemplated in
the Prospectus.
(e)
Neither the Company nor any of its subsidiaries has any securities rated by any “nationally recognized statistical rating organization,”
as such term is defined in Section 3(a)(62) of the Exchange Act.
(f)
Compliance with Certain Obligations. The Company shall have performed each of its applicable obligations under Section 3(o) –
3(q) and Section 3(v).
(g)
Opinion of Agent Counsel. On each Representation Date to which a waiver does not apply, there shall have been furnished to the
Agent the opinion and negative assurance letter of Cooley LLP, counsel for the Agent, dated as of such Representation Date and addressed
to the Agent, in a form reasonably satisfactory to the Agent, and such counsel shall have received such papers and information as they
reasonably request to enable them to pass upon such matters; provided however, the opinion of Cooley LLP shall only be required prior
to the first Placement Notice, and thereafter, only a negative assurance letter of such counsel shall be required for each subsequent
Representation Date.
(h)
Representation Certificate. On or prior to the first Placement Notice, the Agent shall have received the Representation Certificate
in form and substance reasonably satisfactory to the Agent and its counsel.
(i)
No Objection by FINRA. FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements
contained herein.
(j)
Timely Filing of Prospectus and Prospectus Supplement. All filings with the Commission required by Rule 424 under the Securities
Act to have been filed by the Settlement Date, as the case may be, shall have been made within the applicable time period prescribed
for such filing by Rule 424 under the Securities Act.
(k)
Additional Documents and Certificates. The Company shall have furnished to the Agent and the Agent’s counsel such additional
documents, certificates and evidence as they may have reasonably requested.
All
opinions, certificates, letters and other documents described in this Section 4 will be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to the Agent and the Agent’s counsel. The Company will furnish the Agent
with such conformed copies of such opinions, certificates, letters and other documents as the Agent shall reasonably request.
5.
Indemnification and Contribution.
(a)
Company Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates, directors, officers and
employees, and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities, joint or several, to which the Agent may become subject, under the Securities
Act or otherwise (including in settlement of any litigation), insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon, in whole or in part:
(i)
an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the Rule 430B Information
(as defined below) and at any subsequent time pursuant to Rules 430A and 430B promulgated under the Securities Act, and any other information
deemed to be part of the Registration Statement at the time of effectiveness, and at any subsequent time pursuant to the Securities Act
or the Exchange Act, and the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act
and deemed to be incorporated by reference into the Prospectus), any Permitted Free Writing Prospectus, or any roadshow as defined in
Rule 433(h) under the Securities Act (a “road show”), or an omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which
they were made (solely with respect to the Prospectus), not misleading,
(ii)
any inaccuracy in the representations and warranties of the Company contained herein;
(iii)
any investigation or proceeding by any governmental authority, commenced or threatened (whether or not the Agent is a target of or party
to such investigation or proceeding);
(iv)
any failure of the Company to perform its respective obligations hereunder or under the law;
and
will reimburse the Agent for any documented out-of-pocket legal or other expenses reasonably incurred by it in connection with investigating
or defending against such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in
any such case of (i) and (ii) to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus, or any
such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by the Agent specifically
for use in the preparation thereof. “Rule 430B Information,” as used herein, means information with respect
to the Shares and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to
Rule 430B.
In
addition to its other obligations under this Section 5(a), the Company agrees that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 5(a), it will reimburse the Agent on a monthly basis for all reasonable and documented out-of-pocket
legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company’s
obligation to reimburse the Agent for such expenses and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction.
(b)
Agent Indemnification. The Agent will indemnify
and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities
Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Agent), but
only insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, any amendment 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, in the light of the circumstances in which they were made (solely with respect to the Prospectus),
not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in conformity with written information furnished to the Company by the Agent specifically for use in the
preparation thereof, it being understood and agreed that the only information furnished by the Agent for use in the Registration Statement
or the Prospectus consists of the statements set forth in the seventh paragraph under the caption “Plan of Distribution”
in the Prospectus, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with
investigating or defending against any such loss, claim, damage, liability or action.
(c)
Notice and Procedures. Promptly after receipt
by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party except to the extent such indemnifying party has been materially prejudiced by such failure.
In case any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Agent, it is advisable for the Agent to be represented by separate counsel, the Agent shall have
the right to employ a single counsel to represent the Agent, in which event the reasonable fees and expenses of such separate counsel
shall be borne by the indemnifying party or parties and reimbursed to the Agent as incurred (in accordance with the provisions of the
second paragraph in subsection (a) above).
The
indemnifying party under this Section 5 shall not be liable for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by this Section 5, the indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into, and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent (a) includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or proceeding and (b) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)
Contribution; Limitations on Liability; Non-Exclusive
Remedy. If the indemnification provided for in this Section 5 is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Agent on the other from the offering of the Shares,
or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Agent
on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total commissions received by the Agent (before deducting expenses) from the sale of the Shares. The relative fault
shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by the Company or the Agent, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company
and the Agent agree that it would not be just and equitable if contributions pursuant to this subsection (d) were to be determined by
pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this
subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred
to in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending against any action or claim which is the subject of this subsection (d). Notwithstanding the provisions
of this subsection (d), the Agent shall not be required to contribute any amount in excess of the commissions received by it under this
Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation.
6.
Representations and Agreements to Survive Delivery. All representations, warranties, and agreements of the Company herein or
in certificates delivered pursuant hereto, including but not limited to the agreements of the Agent and the Company contained in Section
5 hereof, shall remain operative and in full force and effect as of their respective dates regardless of any investigation made by or
on behalf of the Agent or any controlling person thereof, or the Company or any of its officers, directors, or controlling persons, and
shall survive delivery of, and payment for, the Shares to and by the Agent hereunder.
7.
Termination of this Agreement.
(a)
The Company shall have the right, by giving five (5) days’ 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 (i) with respect to any pending sale, through the Agent for the
Company, the obligations of the Company, including in respect of compensation of the Agent, shall remain in full force and effect notwithstanding
the termination and (ii) the provisions of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in full force and effect
notwithstanding such termination.
(b)
The Agent 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 Section 3(g), Section 5 and Section 6 of this Agreement shall remain in
full force and effect notwithstanding such termination.
(c)
Unless earlier terminated pursuant to this Section 7, this Agreement shall automatically terminate upon the earlier to occur of the issuance
and sale of all of the Shares through the Agent on the terms and subject to the conditions set forth herein, except that the provisions
of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in full force and effect notwithstanding such termination.
(d)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 7(a), (b) or (c) 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 Section
3(g), Section 5 and Section 6 shall remain in full force and effect.
(e)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in accordance with
the provisions of Section 2(a)(vii) of this Agreement.
8.
Default by the Company. If the Company shall fail at any Settlement Date to sell and deliver the number of Shares which it is
obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Agent or, except as provided
in Section 3(g) hereof, any non-defaulting party. No action taken pursuant to this Section shall relieve the Company from liability,
if any, in respect of such default, and the Company shall (A) hold the Agent harmless against any loss, claim or damage arising from
or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise be entitled absent such
default.
9.
Notices. Except as otherwise provided herein, all communications under this Agreement shall be in writing and, if to the Agent,
shall be delivered via overnight delivery services to (i) Piper Sandler & Co., U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis,
Minnesota 55402, Attention: Equity Capital Markets, with a copy to Piper Sandler General Counsel at 800 Nicollet Mall, Minneapolis, MN
55402 and LegalCapMarkets@psc.com and Dgoldberg@cooley.com from Cooley LLP; (ii) the Company at 4 Menorat Hamaor Street Tel Aviv 6744832,
Israel Attention: Mr. Marvin Slosman, Chief Executive Officer with a copy to Gary.Emmanuel@gtlaw.com and Raffael.Fiumara@gtlaw.com from
Greenberg Traurig, LLP; or in each case to such other address as the person to be notified may have requested in writing. Any party to
this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such
purpose. Notwithstanding the foregoing, an electronic communication, including e-mail (“Electronic Notice”),
shall be deemed written notice for purposes of this Section 9 if sent to the electronic mail addresses above. Electronic Notice shall
be deemed received at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party (other than
pursuant to auto-reply).
10.
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns and the controlling persons, officers and directors referred to in Section 5. Nothing in
this Agreement is intended or shall be construed to give to any other person, firm or corporation any legal or equitable remedy or claim
under or in respect of this Agreement or any provision herein contained. The term “successors and assigns” as herein used
shall not include any purchaser, as such purchaser, of any of the Shares from the Agent.
11.
Absence of Fiduciary Relationship. The Company, having been advised by counsel, acknowledges and agrees that: (a) the Agent has
been retained solely to act as a sales agent in connection with the sale of the Shares and that no fiduciary, advisory or agency relationship
between the Company (including any of the Company’s affiliates (including directors), equity holders, creditors, employees or agents,
hereafter, “Company Representatives”), on the one hand, and the Agent on the other, has been created or will
be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Agent has advised or is
advising the Company on other matters and irrespective of the use of the defined term “Agent;” (b) neither the Agent nor
any of its affiliates (including directors), equity holders, creditors, employees or agents, hereafter, “Agent Representatives”)
shall have any duty or obligation to the Company or any Company Representative except as set forth in this Agreement; (c) the price and
other terms of any Placement executed pursuant to this Agreement, as well as the terms of this Agreement, are deemed acceptable to the
Company and its counsel, following discussions and arms-length negotiations with the Agent; (d) the Company is capable of evaluating
and understanding, and in fact has evaluated, understands and accepts the terms, risks and conditions of any Placement Notice to be executed
pursuant to this Agreement, and any other transactions contemplated by this Agreement; (e) the Company has been advised that the Agent
and the Agent Representatives are engaged in a broad range of transactions which may involve interests that differ from those of the
Company and that the Agent and the Agent Representatives have no obligation to disclose any such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship, or otherwise; (f) the Company has been advised that the Agent is acting,
in respect of any Placement and the transactions contemplated by this Agreement, solely for the benefit of the Agent, and not on behalf
of the Company; and (g) the Company and the Company Representatives waive, to the fullest extent permitted by law, any claims that they
may have against the Agent or any of the Agent Representatives for breach of fiduciary duty or alleged breach of fiduciary duty in respect
of any Placement or any of the transactions contemplated by this Agreement and agree that the Agent and the Agent Representatives shall
have no liability (whether direct or indirect, in contract, tort or otherwise) to the Company or any of the Company Representatives in
respect of any person asserting any claim of breach of any fiduciary duty on behalf of or in right of the Company or any of the Company
Representatives.
12.
Recognition of the U.S. Special Resolution Regimes.
(a)
In the event that the Agent is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from the Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b)
In the event that the Agent that is a Covered Entity or a BHC Act Affiliate of the Agent becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Agent are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed
by the laws of the United States or a state of the United States.
(c)
As used in this section:
“BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k);
“Covered
Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b);
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable; and
“U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
13.
Governing Law and Waiver of Jury Trial. This Agreement and any transaction contemplated by this Agreement and any claim, controversy
or dispute arising under or related thereto shall be governed by and construed in accordance with the laws of the State of New York without
regard to principles of conflict of laws that would results in the application of any other law than the laws of the State of New York.
The Company (on its own behalf and on behalf of affiliates) hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
14.
Submission to Jurisdiction, Etc. Each party hereby submits to the exclusive jurisdiction of the U.S. federal and New York state
courts sitting in the Borough of Manhattan, City of New York, in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue
of any lawsuit, action or other proceeding in such courts, and hereby further irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such lawsuit, action or other proceeding brought in any such court has been brought in an inconvenient
forum.
15.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together
shall constitute one and the same instrument. Counterparts may be delivered via facsimile or by delivery of a portable document format
(PDF) file (including, without limitation, “pdf,” “tif,” or “jpg”) and any electronic signature by
the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable
law, e.g., www.docusign.com) counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective
for all purposes.
16.
Construction. The section and exhibit headings herein are for convenience only and shall not affect the construction hereof.
References herein to any law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority shall be
deemed to refer to such law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority as amended,
reenacted, supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated
thereunder. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may
not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
[Signature
Pages Follow]
Please
sign and return to the Company the enclosed duplicates of this letter whereupon this letter will become a binding agreement between the
Company and the Agent in accordance with its terms.
| |
Very
truly yours, |
| |
|
|
| |
INSPIREMD,
INC. |
| |
|
|
| |
By: |
/s/
Craig Shore |
| |
Name:
|
Craig
Shore |
| |
Title:
|
Chief
Financial Officer |
Confirmed
as of the date first
above
mentioned.
| PIPER SANDLER & CO. |
|
| |
|
|
| By: |
/s/
Connor Leahey |
|
| Name:
|
Connor
Leahey |
|
| Title:
|
Director |
|
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| Namespace Prefix: |
dei_ |
| Data Type: |
dei:countryCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
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