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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): August 9, 2024
Oncocyte
Corporation
(Exact
name of registrant as specified in its charter)
California |
|
1-37648 |
|
27-1041563 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
15
Cushing
Irvine,
California 92618
(Address
of principal executive offices)
(949)
409-7600
(Registrant’s
telephone number, including area code)
Securities
registered pursuant to Section 12(b) of the Exchange Act:
Title
of each class |
|
Trading
Symbol |
|
Name
of each exchange on which registered |
Common
Stock, no par value |
|
OCX |
|
The
Nasdaq Stock Market LLC |
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)) |
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
August 9, 2024, Oncocyte Corporation (the “Company”) entered into a sales agreement (the “Sales Agreement”)
with Needham & Company, LLC (the “Sales Agent”), pursuant to which the Company may offer and sell from time to time up
to an aggregate of $7,500,000 of shares of the Company’s common stock, no par value per share (the “Placement Shares”),
through the Sales Agent.
The
Placement Shares have been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the
Registration Statement on Form S-3 (File No. 333-281159) (the “Registration Statement”), which was filed with the Securities
and Exchange Commission (“SEC”) on August 1, 2024 and declared effective by the SEC on August 7, 2024, the base prospectus
contained within the Registration Statement, and a prospectus supplement dated August 9, 2024.
Sales
of the Placement Shares, if any, pursuant to the Sales Agreement, may be made in sales deemed to be “at the market offerings”
as defined in Rule 415 promulgated under the Securities Act. The Sales Agent will act as sales agent and will use commercially reasonable
efforts to sell, on the Company’s behalf, all of the Placement Shares requested to be sold by the Company, consistent with its
normal trading and sales practices, the terms of the Sales Agreement, and applicable law and regulations. The Company may also sell Placement
Shares to the Sales Agent as principal in negotiated transactions.
The
Company has no obligation to sell any Placement Shares, and may at any time suspend offers under the Sales Agreement or terminate the
Sales Agreement. The Company intends to use the net proceeds from this offering for working capital and other general corporate purposes.
The Sales Agreement will terminate, and offer and sale of the Placement Shares pursuant to the Sales Agreement will cease, upon the earlier
of (a) the issuance and sale of all of the Placement Shares subject to the Sales Agreement or (b) the termination of the Sales Agreement
by the Sales Agent or the Company pursuant to the terms thereof. The Sales Agreement contains customary representations, warranties and
agreements by the Company, as well as indemnification obligations of the Company for certain liabilities under the Securities Act.
Under
the terms of the Sales Agreement, the Company will pay the Sales Agent a commission equal to 3.0% of the aggregate gross proceeds from
each sale of Placement Shares sold through it under the Sales Agreement. In addition, the Company has agreed to pay certain expenses
incurred by the Sales Agent in connection with the offering.
This
Current Report on Form 8-K (this “Current Report”) shall not constitute an offer to sell or a solicitation of an offer to
buy any securities, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation
or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
The
description of the material terms of the Sales Agreement is not intended to be complete and is qualified in its entirety by reference
to the Sales Agreement, which is filed as Exhibit 1.1 to this Current Report and incorporated herein by reference.
Stradling
Yocca Carlson & Rauth LLP, counsel to the Company, has issued an opinion to the Company, dated August 9, 2024, regarding the
validity of the Placement Shares. A copy of the opinion is filed as Exhibit 5.1 to this Current Report.
Item
1.02 Termination of a Material Definitive Agreement
In
connection with the foregoing, the Company delivered written notice (the “Termination Notice”) to BTIG, LLC that it
is terminating the At-The-Market Sales Agreement entered into between the Company and BTIG, LLC dated June 11, 2021 (the “Prior
Sales Agreement”). In connection with the Prior Sales Agreement, the Company filed a prospectus supplement with the SEC that covered
the sale of At The Market placement shares to be sold under the Prior Sales Agreement in an aggregate amount of $50,000,000 (the “Prior
Program”). Upon termination of the Prior Sales Agreement, the Company will not make any additional offers or sales of placement
shares pursuant to the Prior Sales Agreement. Accordingly, the Prior Program has been terminated.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
ONCOCYTE
CORPORATION |
|
|
Date:
August 9, 2024 |
By:
|
/s/
Joshua Riggs |
|
|
Joshua
Riggs |
|
|
President
and Chief Executive Officer |
Exhibit
1.1
EXECUTION
VERSION
Oncocyte
Corporation
Shares
of Common Stock
SALES
AGREEMENT
August
9, 2024
Needham
& Company, LLC
250
Park Avenue
New
York, New York 10177
Ladies
and Gentlemen:
Oncocyte
Corporation, a California corporation (the “Company”), confirms as follows its agreements with Needham & Company, LLC
(the “Sales Agent”).
1.
Issuance and Sale of Shares.
(a)
On the basis of the representations, warranties and agreements of the Company herein contained and subject to all the terms and conditions
of this Sales Agreement (this “Agreement”), the Company agrees that, from time to time during the term of this Agreement,
it may issue and sell through the Sales Agent an aggregate amount of $7,500,000 of common stock (the “Placement Shares”)
of the Company, no par value per share (the “Common Stock”); provided, however, that in no event shall the
Company issue or sell through the Sales Agent such number or dollar amount of Placement Shares that would (i) exceed the number or dollar
amount of shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering
is being made, (ii) exceed the number of authorized but unissued shares of Common Stock (less shares of Common Stock issuable upon exercise,
conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital
stock), (iii) exceed the number or dollar amount of shares of Common Stock permitted to be sold by the Company under Form S-3 (including
General Instruction I.B.6. thereof, if applicable), (iv) exceed the number of shares of Common Stock permitted to be sold under the rules
and regulations of The Nasdaq Stock Market LLC (the “Exchange”) or (v) exceed the number or dollar amount of shares of Common
Stock for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of clauses (i), (ii), (iii), (iv) and (v)
the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance
with the limitations set forth in this Section 1 on the number or dollar amount of Placement Shares that may be issued and sold under
this Agreement shall be the sole responsibility of the Company and the Sales Agent shall have no obligation in connection with such compliance.
The issuance and sale of Placement Shares through the Sales Agent will be effected pursuant to the Registration Statement filed by the
Company with the Securities and Exchange Commission (the “Commission”) on August 1, 2024 and declared effective by the Commission
on August 7, 2024, although nothing in this Agreement shall be construed as requiring the Company to issue shares of Common Stock.
(b)
The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Act”), and the rules
and regulations of the Commission thereunder (collectively referred to as the “Rules and Regulations”), with the Commission
a registration statement on Form S-3 (File No. 333-281159), including a base prospectus and together with such amendments thereto as
may have been required to the date of this Agreement, relating to 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 (the “Exchange Act”), and the rules and regulations of the Commission thereunder (collectively,
the “Exchange Act Rules and Regulations”). The Company has prepared a prospectus supplement to the base prospectus included
as part of the Registration Statement, which prospectus supplement relates to the Placement Shares to be issued from time to time by
the Company pursuant to this Agreement (the “Prospectus Supplement”). The Company will furnish to the Sales Agent, for use
by the Sales Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus
Supplement. The Company may file one or more additional registration statements from time to time that will contain a base prospectus
and a related prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except
where the context otherwise requires, any such registration statement, including the amendments thereto, the exhibits and any schedules
thereto, the documents otherwise deemed to be part thereof, included 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) of the Rules and Regulations
(“Rule 424(b)”) or deemed to be a part of such registration statement pursuant to the Rules and Regulations (including Rule
430B thereof), and any registration statement relating to the offering contemplated by this Agreement and filed pursuant to Rule 462(b)
of the Rules and Regulations (“Rule 462(b)”) is herein called the “Registration Statement.” The base prospectus
or base prospectuses, including all documents incorporated by reference therein, included in the Registration Statement, as it may be
supplemented, if applicable, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement
have most recently been filed by the Company with the Commission pursuant to Rule 424(b), together with any then-issued Issuer Free Writing
Prospectuses (as defined below), is herein called the “Prospectus.”
(c)
Any reference herein to the Registration Statement, any base prospectus, any Prospectus Supplement, the Prospectus or any Issuer Free
Writing Prospectus shall be deemed to refer to and include the documents, if any, that are or are deemed to be incorporated by reference
therein or from which information is so incorporated by reference (the “Incorporated Documents”), including, unless the context
otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any base prospectus, any Prospectus Supplement,
the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act on or after the most recent effective date of the Registration Statement, or the respective dates of the base prospectus, such Prospectus
Supplement, the Prospectus or such Issuer Free Writing Prospectus, as the case may be, and deemed to incorporated by reference therein.
For purposes of this Agreement, all references to the Registration Statement, the Prospectus or any amendment or supplement thereto shall
be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval
system or, if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).
2.
Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify the Sales Agent by email notice (or other method mutually agreed to by the parties) (each such notice, a “Placement
Notice”) containing the parameters in accordance with which the Company desires such Placement Shares to be sold, which at a minimum
shall include the maximum number of Placement Shares or aggregate dollar amount of Placement Shares to be sold, the time period during
which sales are requested to be made, any limitation on the number or amount of Placement Shares that may be sold in any day on which
the Common Stock is traded on the Exchange (any such day, a “Trading Day”) and any minimum price below which sales may not
be made, the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the
Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such Schedule 3), and shall
be addressed to each of the individuals from the Sales Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to
time. The Placement Notice shall be effective upon receipt by the Sales Agent unless and until (a) the Sales Agent declines in writing
to accept the terms contained therein for any reason, in its sole discretion, (b) the Sales Agent suspends sales under the Placement
Notice for any reason in its sole discretion in accordance with this Agreement, (c) the entire number or amount of the Placement Shares
thereunder or under this Agreement have been sold, (d) the Company amends, supersedes, suspends or terminates the Placement Notice or
(e) this Agreement has been terminated under the provisions of Section 11. The amount of any discount, commission or other compensation
to be paid by the Company to the Sales Agent in connection with the sale of the Placement Shares shall be calculated in accordance with
the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the Sales Agent will have any
obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to
the Sales Agent and the Sales Agent does not decline (and the Company does not suspend or terminate) such Placement Notice pursuant to
the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of
this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control with respect to the matters covered
thereby.
3.
Sale of Placement Shares by the Sales Agent. On the basis of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions of this Agreement, upon the Sales Agent’s acceptance of the terms of a Placement
Notice, and unless the sale of the Placement Shares described therein has been declined, suspended or otherwise terminated in accordance
with the terms of this Agreement, the Sales Agent, for the period specified in the Placement Notice, will use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable laws and regulations and the rules of the Exchange to sell
such Placement Shares up to the number or amount specified in, and otherwise in accordance with the terms of, such Placement Notice.
The Sales Agent will provide written confirmation to the Company no later than the opening of the Trading Day immediately following the
Trading Day on which it has made sales of Placement Shares hereunder setting forth the number or amount of Placement Shares sold on such
Trading Day, the average price at which Placement Shares were sold and the gross proceeds generated from such sales. Subject to the terms
of the Placement Notice, the Sales Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market
offering” (as defined in Rule 415(a)(4) of the Rules and Regulations), including sales made directly on or through the Exchange
or any other existing trading market for the Common Stock, 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. The Company acknowledges and agrees that
(a) there can be no assurance that the Sales Agent will be successful in selling Placement Shares, (b) the Sales Agent will incur no
liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a
failure by the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
laws and regulations to sell such Placement Shares as required under this Agreement and (c) the Sales Agent shall be under no obligation
to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Sales Agent and the Company
in a separate written agreement setting forth the terms of such sale.
4.
Suspension of Sales.
(a)
The Company or the Sales Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom
the notice is sent, other than automatic reply) or by telephone (confirmed immediately by verifiable email correspondence to each of
the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares (each, a “Suspension”);
provided, however, that such Suspension shall not affect or impair any party’s obligations with respect to any Placement
Shares sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any obligation under Sections 7(u), 7(v),
7(w) and 7(x) with respect to the delivery of certificates, opinions and comfort letters to the Sales Agent, shall be waived ; provided,
however, that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K.
Each of the parties agrees that no notice under this Section 4 shall be effective against the other party unless notice is sent by one
of the individuals named on Schedule 3 hereto to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from
time to time. During a Suspension, the Company shall not issue any Placement Notices and the Sales Agent shall not sell any Placement
Shares hereunder. The party that issued a Suspension notice shall notify the other party in writing of the Trading Day on which the Suspension
shall expire not later than twenty-four (24) hours prior to such Trading Date.
(b)
Notwithstanding any other provision of this Agreement, during any period in which the Company is, or may be deemed to be, in possession
of material non-public information, the Company and the Sales Agent agree that (i) no sale of Placement Shares will take place, (ii)
the Company shall not request the sale of any Placement Shares and shall cancel any effective Placement Notices instructing the Sales
Agent to make any sales and (iii) the Sales Agent shall not be obligated to sell or offer to sell any Placement Shares.
5.
Settlement and Delivery.
(a)
Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will occur on the second Trading
Day (or such other day as is industry practice for regular-way trading) following the date on which such sales are made (each, a “Settlement
Date”). The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold
(the “Net Proceeds”) will be equal to the aggregate gross sales price received by the Sales Agent, after deduction of (i)
the Sales Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof,
(ii) any other amounts due and payable by the Company to the Sales Agent pursuant to Section 7(i) of this Agreement and (iii) any transaction
fees imposed by any governmental or self-regulatory organization in respect of such sales.
(b)
On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Placement Shares
being sold by crediting the Sales Agent’s or its designee’s account (provided the Sales Agent shall have given the Company
written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company through its Deposit
and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in
all cases shall be duly authorized, freely tradeable, transferable, registered shares of Common Stock in good deliverable form. On each
Settlement Date, the Sales Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on or
prior to the Settlement Date. In addition to and in no way limiting the rights and obligations set forth in Section 9 hereto, the Company
agrees that if the Company or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized, freely tradeable,
transferable, registered Placement Shares on a Settlement Date, the Company will (i) hold the Sales 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 or its transfer agent (if applicable), (ii) pay to the Sales Agent any commission, discount or other compensation to which
it would otherwise have been entitled absent such default and (iii) take all necessary action to cause the full amount of any Net Proceeds
that were delivered to the Company’s account with respect to such settlement, together with any costs incurred by the Sales Agent
in connection with recovering such Net Proceeds, to be immediately returned to the Sales Agent no later than 5:00 p.m., New York City
time, on such Settlement Date, by wire transfer of immediately available funds to an account designated by the Sales Agent.
(c)
Certificates for the Placement Shares, if any, shall be in such denominations and registered in such names as the Sales Agent may request
in writing one Business Day (as defined below) before the applicable Settlement Date. Certificates for the Placement Shares, if any,
will be made available by the Company for examination and packaging by the Sales Agent in New York City not later than 12:00 p.m., New
York City time, on the Business Day prior to the applicable Settlement Date.
(d)
Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to the sale
of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement would exceed
the lesser of (i) together with all sales of Placement Shares under this Agreement, the Maximum Amount, (ii) the amount available for
offer and sale under the then-effective Registration Statement and (iii) the amount authorized from time to time to be issued and sold
under this Agreement by the Company’s board of directors or a duly authorized committee thereof, and notified to the Sales Agent
in writing. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement
at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized committee
thereof, and notified to the Sales Agent in writing. Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge
and agree that compliance with the limitations set forth in this Section 5(d) on the maximum number of Placement Shares or aggregate
dollar amount of Placement Shares that may be issued and sold under this Agreement from time to time shall be the sole responsibility
of the Company, and the Sales Agent shall have no obligation in connection with such compliance.
(e)
The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Placement Shares or any other equity
security of the Company shall only be effected by or through a Sales Agent; provided, however, that (i) the foregoing limitation
shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instruction governing such
securities or (B) sales solely to employees, directors or security holders of the Company or its subsidiaries, or to a trustee or other
person acquiring such securities for the accounts of such person and (ii) such limitation shall not apply (A) on any day during which
no sales are made pursuant to this Agreement or (B) during a period in which the Company has notified the Sales Agent that it will not
sell Common Stock under this Agreement and (1) no Placement Notice is pending or (2) after a Placement Notice has been withdrawn.
6.
Representations and Warranties of the Company
The
Company represents, warrants and covenants to the Sales Agent that as of the date of this Agreement and as of each Applicable Time (as
defined below), unless such representation, warranty or covenant specifies a different time:
(a)
The Company and the transactions contemplated by this Agreement meet the requirements for and comply with the applicable conditions for
the use of Form S-3 (including General Instructions I.A and I.B.6) under the Act. The Registration Statement has been filed with the
Commission and has been declared effective by the Commission under the Act prior to the issuance of any Placement Notice by the Company.
The Prospectus Supplement will name the Sales Agent as the agent engaged by the Company in the section entitled “Plan of Distribution.”
The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415 under
the Rules and Regulations and comply in all material respects with Rule 415. The Company has not received, and has no notice from the
Commission of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting
proceedings for that purpose. Any statutes, regulations, contracts or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed. Copies of the Registration
Statement, the Prospectus and any such amendments or supplements and all documents incorporated by reference therein that were filed
with the Commission on or prior to the date of this Agreement have been delivered to the Sales Agent and its counsel, or are available
through EDGAR. The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution
of the Placement Shares, will not distribute any offering material in connection with the offering or sale of the Placement Shares other
than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus to which the Sales Agent has consented.
(b)
No order preventing or suspending the use of the any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus has
been issued by the Commission, and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto has been issued, and no proceeding for that purpose has been initiated or threatened by the Commission. On the date the Registration
Statement became or becomes effective (the “Effective Date”), on the date any Prospectus Supplement, the Prospectus, any
Issuer Free Writing Prospectus or any amendment or supplement thereto, and the Incorporated Documents, when such documents were or are
filed with the Commission under the Act or the Exchange Act, at each Applicable Time and at all times during the period through and including
any Settlement Date and when any post-effective amendment to the Registration Statement becomes effective, the Registration Statement,
the Prospectus and any Issuer Free Writing Prospectus (in each case, as amended or as supplemented, if applicable), including the financial
statements, if any, included or incorporated by reference therein, did and will comply with all applicable requirements of the Act, the
Exchange Act, the Exchange Act Rules and Regulations and the Rules and Regulations, and did and will contain all statements required
to be stated therein in accordance with the Act, the Exchange Act, the Exchange Act Rules and Regulations and the Rules and Regulations.
When
it became, becomes or is deemed to become effective, no part of the Registration Statement or any amendment or supplement thereto did,
does or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, as of its date and at each Applicable
Time, did not, does not and will not include an 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. Each Issuer Free Writing
Prospectus, as of its issue date and as of each Applicable Time, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated
by reference therein that has not been superseded or modified.
As
used in this subsection and elsewhere in this Agreement:
“Applicable
Time” means (i) each Representation Date (as defined below), (ii) the time of each sale of any Placement Shares pursuant to this
Agreement and (iii) each Settlement Date.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations
(“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission by the Company or (ii)
is exempt from filing pursuant to Rule 433(d)(5)(i), in each case, in the form filed or required to be filed with the Commission or,
if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
The
foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on, and in
conformity with, information relating to the Sales Agent furnished in writing to the Company by the Sales Agent specifically for inclusion
in the Registration Statement, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, or any amendment or supplement
thereto. The Company acknowledges that the statements set forth in the ninth paragraph under the caption “Plan of Distribution”
in the Prospectus Supplement (the “Sales Agent Information”) constitute the only information relating to the Sales Agent
furnished in writing to the Company by the Sales Agent specifically for inclusion in the Registration Statement, the Prospectus Supplement,
the Prospectus and any Issuer Free Writing Prospectus.
(c)
In connection with the offering of the Placement Shares, (i) at the times specified in Rule 164 and Rule 433 of the Rules and Regulations
and (ii) as of the date hereof, the Company was not and is not an “ineligible issuer” (as defined in Rule 405 of the Rules
and Regulations (“Rule 405”)), without taking account of any determination by the Commission pursuant to Rule 405 that it
is not necessary that the Company be considered an ineligible issuer.
(d)
The Incorporated Documents, when they became or become effective or were or are filed with the Commission, as the case may be, complied
or will comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and the Rules and Regulations
and the Exchange Act Rules and Regulations, as applicable; and any further documents filed and incorporated by reference subsequent to
the Effective Date shall, when they are filed with the Commission, comply in all material respects with the requirements of the Act and
the Exchange Act, as applicable, and the Rules and Regulations and the Exchange Act Rules and Regulations, as applicable. Each Incorporated
Document did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain
an untrue statement of a material fact or omit to state a material fact required to be stated in such document or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e)
The Company does not own, directly or indirectly, any shares of stock or any other equity or long-term debt securities of any corporation
or have any equity interest in any corporation, firm, partnership, joint venture, association or other entity, other than (i) the subsidiaries
listed in Exhibit 21 to its most recent Annual Report on Form 10-K (collectively, the “Subsidiaries”) and (ii) those subsidiaries
not required to be listed on such Exhibit 21 pursuant to Item 601 of Regulation S-K under the Exchange Act. The Company and each of its
Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. The Company
and each of its Subsidiaries has full power and authority to conduct all the activities conducted by it, to own or lease all the assets
owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus. The Company and each
of its Subsidiaries is duly licensed or qualified to do business and in good standing as a foreign corporation or such other entity in
all jurisdictions in which the nature of the activities conducted by it or the character of the assets owned or leased by it makes such
license or qualification necessary, except to the extent that the failure to be so qualified or be in good standing or have such power
or authority could not, individually or in the aggregate, have a material adverse effect or could not reasonably be expected to have
a material adverse effect on the Company and its Subsidiaries, taken as a whole, or their respective assets, businesses, operations,
earnings, properties, prospects, conditions (financial or other), stockholders’ equity or results of operations, or prevent or
materially interfere with consummation of the transactions contemplated hereby (such effect is referred to herein as a “Material
Adverse Effect”). All of the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued,
are fully paid and nonassessable and free of any preemptive or similar rights, and are wholly owned by the Company free and clear of
all claims, liens, charges, security interests, rights of first refusal and encumbrances; there are no securities outstanding that are
convertible into or exercisable or exchangeable for capital stock of any Subsidiary. The Company and its Subsidiaries are not engaged
in any discussions or a party to any agreement or understanding, written or oral, regarding the acquisition of an interest in any corporation,
firm, partnership, joint venture, association or other entity where such discussions, agreements or understandings would require disclosure
in, or amendment to, the Registration Statement. Complete and correct copies of the Articles of Incorporation and of the Second Amended
and Restated Bylaws (the “Bylaws”) of the Company and the organizational documents of each of its Subsidiaries and all amendments
thereto have been delivered to the Sales Agent and its counsel, or are available through EDGAR, and no changes therein will be made subsequent
to the date hereof and prior to the termination of this Agreement without the Sales Agent’s prior written consent (which consent
shall not be unreasonably withheld, conditioned or denied).
(f)
The Company has authorized, issued and outstanding capital stock as set forth in, or incorporated by reference into, the Registration
Statement and the Prospectus as of the respective dates set forth therein (other than the grant of additional equity awards or rights
under the Company’s existing stock option plans and equity incentive plans, or changes in the number of outstanding shares of Common
Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof) and such authorized capital stock conforms to the description thereof set forth in the Registration
Statement and the Prospectus. All of the outstanding shares of capital stock of the Company have been duly authorized, validly issued,
are fully paid and nonassessable, were issued in compliance with all applicable state and federal securities laws and are not subject
to any preemptive rights, rights of first refusal or similar rights. The Placement Shares have been duly authorized and, when issued
and delivered by the Company against payment therefor as contemplated hereby, will be validly issued, fully paid and nonassessable, free
and clear of any pledge, lien, encumbrance, security interest or other claim, and will be registered pursuant to Section 12 of the Exchange
Act; no preemptive rights, rights of first refusal or similar rights exist with respect to any of the Placement Shares or the issue and
sale thereof. The description of the capital stock of the Company included or incorporated by reference in the Registration Statement,
the Prospectus Supplement and the Prospectus is complete and accurate in all material respects. The Placement Shares, when issued, will
conform to the description thereof set forth in or incorporated into the Prospectus. Except as set forth in the Prospectus Supplement
and the Prospectus, the Company does not have outstanding and will not have outstanding any options to purchase, or any rights or warrants
to subscribe for, or any other securities or obligations convertible into, or any other contracts or commitments to issue or sell, any
shares of capital stock, or any such warrants, convertible securities or obligations. The certificates evidencing the Placement Shares,
if any, are in due and proper legal form and have been duly authorized for issuance by the Company. The issuance and sale of the Placement
Shares as contemplated hereby will not cause any holder of any share capital, securities convertible into or exchangeable or exercisable
for share capital or options, warrants or other rights to purchase share capital or any other securities of the Company to have any right
to acquire any preferred shares or other securities of the Company.
(g)
At the time the Registration Statement was originally declared effective, the Company met the then-applicable requirements for the use
of Form S-3 under the Act, including, but not limited to, General Instruction I.B.6. of Form S-3. The Company meets the requirements
for use of Form S-3 under the Act specified in Conduct Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
The aggregate market value of the outstanding voting and non-voting common equity (as defined in Rule 405) of the Company held by persons
other than affiliates of the Company (pursuant to Rule 144 of the Rules and Regulations, those that directly, or indirectly through one
or more intermediaries, control, or are controlled by, or are under common control with, the Company) (the “Non-Affiliate Shares”),
was equal to or greater than $75 million (calculated by multiplying (i) the highest price at which the common equity of the Company closed
on the Exchange within 60 days of the date of this Agreement by (ii) the number of Non-Affiliate Shares). For as long as the Company
is subject to General Instruction I.B.6. of Form S-3 during the term of this Agreement, the aggregate market value of all securities
sold by or on behalf of the Company pursuant to and in reliance on General Instruction I.B.6. of Form S-3 during the period of 12 calendar
months immediately prior to, and including, any offering of Shares pursuant to this Agreement pursuant to and in reliance on General
Instruction I.B.6. of Form S-3 shall not be more than one-third of the aggregate market value of the Non-Affiliate Shares, calculated
in accordance with Instructions 1 and 2 to General Instruction I.B.6 of Form S-3. The Company is not a shell company (as defined in Rule
405) and has not been a shell company for at least 12 calendar months previously and if it has been a shell company at any time previously,
has filed current Form 10 information (as defined in Instruction 4 to General Instruction I.B.6. of Form S-3) with the Commission at
least 12 calendar months previously reflecting its status as an entity that is not a shell company.
(h)
The financial statements, together with the related notes and schedules, included or incorporated by reference in the Registration Statement
or the Prospectus present fairly, in all material respects, the financial condition of the Company and its consolidated Subsidiaries
as of the respective dates thereof and the results of operations, cash flows and changes in stockholders’ equity of the Company
and its consolidated Subsidiaries for the respective periods covered thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved. No other financial statements or schedules (historical or pro forma)
are required by the Act, the Exchange Act, the Exchange Act Rules and Regulations or the Rules and Regulations to be included or incorporated
by reference in the Registration Statement or the Prospectus. To the extent applicable, any pro forma financial statements, information
or data included or incorporated by reference in the Registration Statement and the Prospectus comply with the requirements of Regulation
S-X of the Act, including, without limitation, Article 11 thereof, fairly present the information set forth therein, and the assumptions
used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate
to give effect to the circumstances referred to therein and the pro forma adjustments have been properly applied to the historical amounts
in the compilation of those statements and data. Marcum LLP (“Marcum”) and WithumSmith+Brown,
PC (“Withum” and together with Marcum, the “Accountants”), each of whose report on the consolidated financial
statements and schedules of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form
10-K filed with the Commission and incorporated by reference into the Registration Statement and the Prospectus, are and, during the
periods covered by their report were, an independent registered public accounting firm with respect to the Company within the meaning
of, and as required by, the Act, the Rules and Regulations and the Public Company Accounting Oversight Board (United States) (“PCAOB”).
To the Company’s knowledge, the Accountants are not in violation of the auditor independence requirements of the Sarbanes-Oxley
Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company. The other financial and statistical data included and
incorporated by reference in the Registration Statement and the Prospectus present accurately and fairly the information shown therein
and have been compiled on a basis consistent with the audited financial statements incorporated by reference in the Registration Statement
and the Prospectus and the books and records of the Company. All disclosures contained or incorporated by reference in the Registration
Statement, the Prospectus and any Issuer Free Writing Prospectus regarding “non-GAAP financial measures” (as such term is
defined in the Rules and Regulations) comply with Regulation G of the Exchange Act and Item 10(e) of Regulation S-K under the Act, to
the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement and the Prospectus fairly presents the information called for in all material respects and has been prepared in all material
respects in accordance with the Commission’s rules and guidelines applicable thereto. The Prospectus delivered to Sales Agent for
use in connection with the sale of the Placement Shares pursuant to this Agreement will be identical to the versions of the Prospectus
created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(i)
Except as set forth in the Registration Statement or the Prospectus, no person, as such term is defined in Rule 1-02 of Regulation S-X
under the Rules and Regulations (each, a “Person”), has the right, contractual or otherwise, to cause the Company to issue
or sell to such Person any Common Stock or shares of any other capital stock or other securities of the Company. No Person has any preemptive
rights, resale rights, rights of first refusal, rights of co-sale or any other rights (whether pursuant to a “poison pill”
provision or otherwise) to purchase any Common Stock or shares of any other capital stock or other securities of the Company. Except
as contemplated by this Agreement, no Person has the right to act as an underwriter or as a financial advisor to the Company in connection
with the offer and sale of the Placement Shares.
(j)
Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not
been any Material Adverse Effect, the occurrence of any development that the Company reasonably expects would result in a Material Adverse
Effect or any material adverse change, or any development that would reasonably be expected to result in a material adverse change, in
the general affairs, business, management, condition (financial or otherwise), earnings, results of operations, properties, operations,
assets, liabilities or prospects of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business (a “Material Adverse Change”), (ii) there has not been any change in the capitalization or long-term
indebtedness of the Company (other than in connection with the exercise or settlement of equity awards or rights granted pursuant to
the Company’s stock option plans and equity incentive plans from the shares reserved therefor as described in the Registration
Statement and the Prospectus, the exercise or redemption of warrants described in the Registration Statement and the Prospectus, and
the grant of equity awards or rights in the ordinary course of business and consistent with the past practice of the Company), (iii)
neither the Company nor any of its Subsidiaries has incurred, except in the ordinary course of business as described in the Registration
Statement or the Prospectus, any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations),
nor has the Company or any of its Subsidiaries entered into any material transactions other than pursuant to this Agreement and the transactions
referred to herein and (iv) the Company has not paid, made or declared any dividends or other distributions of any kind on any class
of its capital stock or the capital stock of any Subsidiary.
(k)
The Company and its Subsidiaries are not, will not become as a result of or after giving effect to the transactions contemplated hereby
(including the offer and sale of the Placement Shares), and will not conduct their business in a manner that would cause any of them
to be, an “investment company,” an entity “controlled” by an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company,” as each
such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(l)
Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System
or any other regulation of such Board of Governors.
(m)
Except as set forth in the Registration Statement, or the Prospectus, there are no actions, suits or proceedings pending or, to the knowledge
of the Company, threatened against or affecting the Company, any of its Subsidiaries or any of its or their officers in their capacity
as such, nor any basis therefor, before or by any federal or state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would be reasonably expected to have a Material
Adverse Effect. There are no current or pending legal, governmental or regulatory audits or investigations, actions, suits or proceedings
that are required under the Act to be described in the Registration Statement or the Prospectus that are not so described.
(n)
The Company and each Subsidiary has and will have performed all the obligations required to be performed by it, and is not and will not
be, (i) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or any
other contract, agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries are subject or (ii) in
violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
which default or violation, in the cases of clauses (i) or (ii), would reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Company, no other party under any contract or other agreement to which it or any of its Subsidiaries is a party is in
default in any respect thereunder, which default would reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is or will be in violation of any provision of its certificate or articles of incorporation or by-laws or
similar organizational documents. Neither the Company nor any of its Subsidiaries has (i) failed to pay any dividend or sinking fund
installment on preferred stock or (ii) defaulted on any installment or other payment on indebtedness for borrowed money or on any rental
on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect.
(o)
No consent, approval, authorization or order of, or any filing or declaration with, any court, arbitrator or governmental or regulatory
agency or body is required for the execution, delivery and performance by the Company of this Agreement, the issuance and sale by the
Company of the Placement Shares, except such as have been obtained under the Act or the Rules and Regulations and such as may be required
under state securities or Blue Sky laws, the by-laws and rules of FINRA or the Exchange in connection with the sale of the Placement
Shares by the Sales Agent or such as otherwise have already been obtained or made as of the date of this Agreement.
(p)
The Company has full corporate power and authority to enter into this Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with the terms hereof. The execution and performance of this Agreement and the
consummation of the transactions contemplated hereby (including the issuance and sale of the Placement Shares) will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of its Subsidiaries pursuant to
the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or conflict with or constitute a
default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under,
(i) the certificate or articles of incorporation or by-laws or other organizational documents of the Company or any of its Subsidiaries,
(ii) any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence
of indebtedness, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which
the Company, any of its Subsidiaries or any of its or their properties is bound or affected, or (iii) violate or conflict with any judgment,
ruling, decree, order, statute, rule or regulation of any court or other governmental agency or body applicable to the business or properties
of the Company or any of its Subsidiaries, except, which lien, charge, encumbrance, breach, violation, conflict, default, termination
or acceleration, in the cases of clauses (ii) or (iii) only, would not, individually or in the aggregate, have a Material Adverse Effect.
(q)
The Company and its Subsidiaries have good and marketable title in fee simple to all real property owned by them, good and valid title
to all personal property described in the Registration Statement or the Prospectus as being owned by them, in each case, free and clear
of all liens, charges, encumbrances, claims or restrictions, except such as are not material to the business of the Company or any of
its Subsidiaries. The Company and its Subsidiaries have valid, subsisting and enforceable leases for the real or personal properties
described in the Registration Statement or the Prospectus as being leased by them. The Company and its Subsidiaries own or lease all
such properties as are necessary to their operations as now conducted or as proposed to be conducted, except where the failure to so
own or lease would not have a Material Adverse Effect. Each of the properties of the Company and its Subsidiaries complies in all material
respects with all applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations
and laws relating to access to such properties), except for such failures to comply that would not, individually or in the aggregate,
reasonably be expected to interfere in any material respect with the use made and proposed to be made of such property by the Company
and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or its Subsidiaries has received from any governmental
or regulatory authorities any notice of any condemnation of, or zoning change affecting, the properties of the Company and its Subsidiaries,
and the Company knows of no such condemnation or zoning change that is threatened, except for such that would not reasonably be expected
to interfere in any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or
otherwise could have, individually or in the aggregate, a Material Adverse Effect.
(r)
There is no document, contract, permit or instrument, transaction, relationship, arrangement or off-balance sheet transaction (including,
without limitation, any structural finance, special purpose or limited purpose entity or any “variable interests” in “variable
interest entities,” as such terms are defined in Financial Accounting Standards Board Interpretation No. 46, as codified in Accounting
Standards Codification Topic 810) of a character required to be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement that is not described or filed as required. All contracts to which the Company or any of
its Subsidiaries is a party that are described in, or filed as an exhibit to, the Registration Statement are so described or filed as
required. All contracts to which the Company or any of its Subsidiaries is a party that are described in the Prospectus have been duly
authorized, executed and delivered by the Company or such Subsidiary, constitute valid and binding obligations of the Company or such
Subsidiary and are enforceable against and by the Company or such Subsidiary in accordance with the terms thereof.
(s)
None of the Company, any of its Subsidiaries or any of their respective directors, officers or controlling persons has taken, directly
or indirectly, any action designed, or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in,
or that has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of
the Placement Shares.
(t)
Except as set forth in the Registration Statement or the Prospectus, no holder of securities of the Company has rights, contractual or
otherwise, to require the Company to register any securities, or to include any securities in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement, the sale of the Placement Shares
as contemplated hereby or otherwise, which rights have not been duly waived in a writing furnished to the Sales Agent by the holder thereof
as of the date hereof.
(u)
The Common Stock is registered under Section 12(b) of the Exchange Act and is currently listed on the Exchange under the trading symbol
“OCX.” There is no action pending by the Company or, to the Company’s knowledge, by the Exchange designed to, or 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. The Company is in compliance with all applicable listing requirements of the Exchange.
(v)
(i) The Company and each of its Subsidiaries owns or has adequate rights to use all trademarks, trade names, domain names, patents, patent
rights, mask works, copyrights, technology, know-how (including trade secrets and other unpatented or unpatentable proprietary or confidential
information, systems or procedures), service marks, trade dress rights and other intellectual property and registrations and applications
for registration for any of the foregoing (collectively, “Intellectual Property”) and has such other licenses, approvals
and governmental authorizations, in each case, sufficient to conduct its business as now conducted and as now proposed to be conducted
in the Registration Statement or the Prospectus, and, to the Company’s and its Subsidiaries’ knowledge, there are no rights
of third parties to any such Intellectual Property owned by the Company and its Subsidiaries and none of the foregoing Intellectual Property
rights owned or licensed by the Company or any of its Subsidiaries is invalid or unenforceable, (ii) the Company has no knowledge of
any infringement by it or any of its Subsidiaries of Intellectual Property rights of others, and there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate
any Intellectual Property rights of others, (iii) the Company is not aware of any infringement, misappropriation or violation by others
of, or conflict by others with rights of the Company or any of its Subsidiaries with respect to, any Intellectual Property, (iv) there
is no suit, proceeding or claim being made against the Company or any of its Subsidiaries or, to the knowledge of the Company and its
Subsidiaries, any employee of the Company or any of its Subsidiaries, regarding Intellectual Property, challenging the Company’s
and its Subsidiaries’ rights in or to any such Intellectual Property or alleging other infringement that could have a Material
Adverse Effect, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or
claim, (v) to the Company’s knowledge, there is no third-party U.S. patent or published U.S. patent application that contains claims
for which an “interference proceeding” (as defined in 35 U.S.C. § 135) has been commenced against any patent or patent
application described in the Prospectus as being owned by or licensed to the Company and (vi) the Company and its Subsidiaries have not
received any notice of infringement with respect to any patent or any notice challenging the validity, scope or enforceability of any
Intellectual Property owned by or licensed to the Company or any of its Subsidiaries, in each case the loss of which patent or Intellectual
Property (or loss of rights thereto) could have a Material Adverse Effect. The Company and its Subsidiaries have taken all reasonable
steps necessary to secure their interests in such Intellectual Property from their employees and contractors (including, but not limited
to, assignments of such Intellectual Property from such employees and contractors) and to protect the confidentiality of all of their
confidential information and trade secrets and that of third parties in their possession to the extent contractually required to do so.
(w)
None of the Intellectual Property or technology (including information technology and outsourced arrangements) employed by the Company
or the Subsidiaries has been obtained or is being used by the Company or the Subsidiaries in violation of any contractual obligation
binding on the Company or any of the Subsidiaries or any of their respective officers, directors or employees. The Company and the Subsidiaries
own or have a valid right to access and use all computer systems, networks, hardware, software, databases, websites and equipment used
to process, store, maintain and operate data, information and functions used in connection with the business of the Company and the Subsidiaries
(the “Company IT Systems”). The Company IT Systems are adequate for, and operate and perform in all material respects as
required in connection with, the operation of the business of the Company and the Subsidiaries as currently conducted, except as could
not have a Material Adverse Effect.
(x)
The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns that have been required to be filed
and has paid all taxes and assessments shown thereon to the extent that such taxes or assessments have become due. Neither the Company
nor any of its Subsidiaries has any tax deficiency, penalty or assessment that has been or, to the knowledge of the Company, would reasonably
be asserted or threatened against it that would have a Material Adverse Effect. On each Settlement Date, all stock transfer or other
taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Placement Shares to be sold
hereunder will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have
been fully complied with.
(y)
The Company and its Subsidiaries own or possess all authorizations, approvals, orders, licenses, registrations, other certificates and
permits of and from all governmental regulatory officials and bodies, necessary to conduct their respective businesses as contemplated
in the Registration Statement and the Prospectus, except where the failure to own or possess all such authorizations, approvals, orders,
licenses, registrations, other certificates and permits would not have a Material Adverse Effect. There is no proceeding pending or,
to the Company’s knowledge, threatened (or any basis therefor known to the Company) that may cause any such authorization, approval,
order, license, registration, other certificate or permit to be revoked, withdrawn, cancelled, suspended or not renewed; and the Company
and each of its Subsidiaries is conducting its business in compliance with all laws, rules and regulations applicable thereto (including,
without limitation, all applicable federal, state and local environmental laws and regulations); the Company has not received a notice
of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that could give rise to a notice of non-compliance
with any such laws, rules and regulations, and is not aware of any pending change or contemplated change to any applicable laws, rules
and regulations or governmental positions; in each case that would materially adversely affect the business of the Company or the business
or legal environment under which the Company operates.
(z)
The Company and each of its Subsidiaries maintains or is covered by insurance of the types and in the amounts reasonably deemed adequate
for its business and customary for companies engaged in similar businesses in similar industries, including, but not limited to, insurance
covering real and personal property owned or leased by the Company and its Subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which insurance is in full force and effect.
(aa)
Other than as contemplated by this Agreement, the Company has not incurred and 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.
(bb)
The Company is in compliance in all material respects with, and there has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with, all applicable provisions of the Sarbanes-Oxley Act and the rules
and regulations of the Commission thereunder. Each of the principal executive officer and the principal financial officer of the Company
(or each former principal executive officer of the Company and each former principal financial officer of the Company, as applicable)
has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms,
statements and other documents required to be filed or furnished to the Commission. For purposes of the preceding sentence, “principal
executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley
Act.
(cc)
Neither the Company nor any of its Subsidiaries nor, to the best of the Company’s knowledge, any director, officer, agent, employee
or other person associated with or acting on behalf of the Company or any of its Subsidiaries has, directly or indirectly, (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made
any unlawful payment from corporate funds to any foreign or domestic government official or employee or foreign or domestic political
party or campaign, (iii) violated any provision of the Foreign Corrupt Practices Act of 1977 or any comparable applicable law in another
jurisdiction, or (iv) made any bribe, illegal rebate, payoff, influence payment, kickback or other unlawful payment. The Company, its
Subsidiaries and each of their respective affiliates have instituted and maintain, and will continue to maintain, policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(dd)
The books, records and accounts of the Company and its Subsidiaries accurately and fairly reflect, in reasonable detail, the transactions
in, and dispositions of, the assets of, and the results of operations of, the Company and its Subsidiaries. The Company and each of its
Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit
preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles and
to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. The Company’s internal control over financial reporting is effective and the Company
is not aware of any material weaknesses in its internal control over financial reporting. Since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(ee)
The Company has established and maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15); such disclosure
controls and procedures have been designed to ensure that material information relating to the Company and its Subsidiaries is made known
to the Company’s principal executive officer and principal financial officer by others within those entities, particularly during
the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared.
The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as
of a date within 90 days prior to the filing date of the Form 10-K for the most recently ended fiscal year (such date, the “Evaluation
Date”). The Company presented in its Form 10-K for the most recently ended fiscal year the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date and the disclosure
controls and procedures are effective. Since the Evaluation Date, there have been no significant changes in the Company’s disclosure
controls or, to the Company’s knowledge, in other factors that could significantly affect the Company’s disclosure controls.
(ff)
There are no affiliations or associations between any member of FINRA and any of the Company’s officers, directors or 10% or greater
securityholders, except as set forth in the Registration Statement or the Prospectus. Neither the Company nor any of the Subsidiaries
(i) is required to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or
(ii) directly or indirectly through one or more intermediaries, controls or is a “person associated with a member” or “associated
person of a member” (within the meaning set forth by FINRA).
(gg)
Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or representative of the Company or any of its Subsidiaries is a government, individual or entity that is, or is owned or controlled
by an individual or entity that is (i) the subject of any sanctions administered or enforced by the Office of Foreign Assets Control
of the U.S. Treasury Department, the United Nations Security Council, the European Union, His Majesty’s Treasury or other relevant
sanctions authority (“Sanctions”), nor (ii) located, organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan, Syria and the Crimea, so-called Donetsk
People’s Republic and so-called Luhansk People’s Republic regions of Ukraine). The Company and its Subsidiaries have not
engaged in, and are not now engaged in, and will not engage in any dealings or transactions with any government, 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, and have instituted
and maintain policies and procedures reasonably designed to promote and achieve compliance with such Sanctions. The Company and its Subsidiaries
will not, directly or indirectly, use the proceeds of the issuance and sale of the Placement Shares, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person (A) to fund or facilitate any activities or business
of or with any government, individual or entity or in any country or territory that, at the time of such funding or facilitation, is
the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any government, individual or entity
(including any government, individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise).
(hh)
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, the money laundering laws of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines administered or enforced
by any applicable 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.
(ii)
Except as would not, individually or in the aggregate, have a Material Adverse Effect, (i) each of the Company and each of its Subsidiaries
(A) is in compliance with all applicable rules, laws and regulation relating to pollution, the protection of health or the environment,
and the use, transportation, treatment, storage and disposal of, or exposure to, hazardous or toxic substances or wastes, (“Environmental
Law”) and (B) has received and is in compliance with all permits, licenses or other approvals required of them under applicable
Environmental Law to conduct their respective businesses as described in the Registration Statement and the Prospectus, (ii) none of
the Company nor any of its Subsidiaries has received any notice from any governmental authority or third party, or otherwise has knowledge,
of any asserted claim under Environmental Laws, and (iii) no facts currently exist that could subject the Company or any of its Subsidiaries
to liability under Environmental Laws, including any liability for remediation of any releases or threatened releases of hazardous or
toxic substances.
(jj)
The statistical, industry-related and market-related data included or incorporated by reference in the Registration Statement and the
Prospectus are based on or derived from sources the Company reasonably and in good faith believes are reliable and accurate, and such
data agrees with the sources from which they are derived, and the Company has obtained the written consent to the use of such data from
such sources to the extent required.
(kk)
The Company and each of its Subsidiaries is in compliance in all material respects with all applicable provisions of the Employee Retirement
Income Security Act of 1974, including the regulations and published interpretations thereunder (“ERISA”); no “reportable
event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company
and each of its Subsidiaries would have any liability; each of the Company and each of its Subsidiaries has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan”
or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, including the regulations and published interpretations thereunder
(the “Code”); and each “pension plan” for which the Company or any Subsidiary would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such qualification.
(ll)
No material labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could have a Material Adverse Effect. None of the employees of the Company or any of its
Subsidiaries is represented by a union and, to the knowledge of the Company, no union organizing activities are taking place. Neither
the Company nor any of its Subsidiaries has violated any federal, state or local law or foreign law relating to the discrimination in
hiring, promotion or pay of employees, nor any applicable wage or hour laws, or the rules and regulations thereunder, or analogous foreign
laws and regulations, which would, individually or in the aggregate, result in a Material Adverse Effect.
(mm)
No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution
on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.
(nn)
The clinical, pre-clinical and other studies and tests conducted by or, to the knowledge of the Company, on behalf of the Company were,
and, if still pending, are being, conducted in accordance in all material respects with all statutes, laws, rules and regulations, as
applicable (including, without limitation, the U.S. Federal and Drug Administration’s (the “FDA”) Good Laboratory Practices
and Good Clinical Practices as well as all other applicable rules, regulations, or requirements of the FDA or any foreign, federal, state
or local governmental or regulatory authority performing functions similar to those performed by the FDA). Except as set forth in the
Registration Statement and Prospectus, the Company has not received any written notices or other written correspondence from the FDA
or any other foreign, federal, state or local governmental or regulatory authority performing functions similar to those performed by
the FDA requiring the Company to terminate or suspend any ongoing clinical or pre-clinical studies or tests. Except as set forth in the
Registration Statement and Prospectus, the Company has not received any 483 or other adverse finding from the FDA or any other regulator
with respect to any clinical site, clinical trial protocol, or clinical investigator.
(oo)
The Company and its Subsidiaries have operated its business in a manner compliant in all material respects with all privacy and data
protection laws and regulations applicable to the Company’s and its Subsidiaries’ collection, handling, and storage of its
customers’ data. The Company and its Subsidiaries have policies and procedures in place designed to ensure the integrity and security
of the data collected, handled or stored in connection with the delivery of its product offerings. The Company and its Subsidiaries comply
with, and maintain policies and procedures designed to ensure privacy and data protection laws are complied with and takes appropriate
steps which are reasonably designed to ensure compliance in all material respects with such policies and procedures.
(pp)
No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) contained in the Registration
Statement and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(qq)
The Company is not a party to any agreement with an agent or underwriter for any other “at the market” or continuous equity
transaction (as defined in Rule 415 of the Rules and Regulations).
(rr)
The Company acknowledges and agrees that Sales Agent has informed the Company that the Sales Agent may, to the extent permitted under
the Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect, provided,
that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent the Sales Agent may engage
in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity)
and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Sales Agent.
(ss)
[Reserved].
(tt)
No statement, representation or warranty made by the Company in this Agreement or made in any certificate or document required by this
Agreement to be delivered to the Sales Agent was or will be, when made, inaccurate, untrue or incorrect.
Any
certificate signed by an officer of the Company and delivered to the Sales Agent or to counsel for the Sales Agent pursuant to or in
connection with this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to the Sales Agent
as to the matters set forth therein.
The
Company acknowledges that the Sales Agent and, for purposes of the opinions to be delivered pursuant to this Agreement, Company Counsel,
Company IP Counsel and counsel to the Sales Agent, will rely upon the accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
7.
Agreements of the Company.
The
Company covenants and agrees with the Sales Agent as follows:
(a)
The Company will not, either prior to the first Applicable Time or thereafter during such period as the Prospectus is required by law
to be delivered in connection with sales of the Placement Shares by the Sales Agent or a dealer, file any amendment, supplement or other
document under the Exchange Act or the Exchange Act Rules and Regulations relating to the Placement Shares or a security convertible
into the Placement Shares, if such document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus,
unless a copy thereof shall first have been submitted to the Sales Agent for approval within a reasonable period of time prior to the
filing thereof (provided, however, that the failure of the Company to obtain the Sales Agent’s approval shall not
relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the representations
and warranties made by the Company in this Agreement).
(b)
So long as delivery of the Prospectus relating to any Placement Shares may be required to be delivered by the Sales Agent or any dealer
under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations or
any similar rule), the Company will notify the Sales Agent promptly, and will confirm such advice in writing, (i) when any amendment
to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, in
each case, other than documents incorporated by reference, (ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information related to the offering of the Placement Shares or to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus, (iii) of its receipt of notice or its knowledge of the issuance or threatened
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the
use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that
purpose or the threat thereof, (iv) of the suspension of the qualification of the Placement Shares for offering and sale in any jurisdiction,
or the initiation or threatening of any proceeding for that purpose, and (v) of receipt by the Company or any representative or counsel
to the Company of any other communication from the Commission relating to the Company, the Registration Statement, the Prospectus Supplement,
the Prospectus or the issuance and sale of the Placement Shares. If at any time the Commission shall issue any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing
Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If
the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company
will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Sales
Agent promptly of all such filings. The Company will cause each amendment or supplement to the Prospectus to be filed with the Commission
as required pursuant to the applicable paragraph of Rule 424(b) of the Act or, in the case of any document to be incorporated by reference
therein, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed. If the Company
elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission
in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time
of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for
the payment of such fee pursuant to the Rules and Regulations. So long as delivery of the Prospectus relating to any Placement Shares
may be required to be delivered by the Sales Agent or any dealer under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 of the Rules and Regulations or any similar rule), the Company will comply with all requirements imposed
upon it by the Act, as from time to time in force, and to file on or before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d)
or any other provision of or under the Exchange Act.
(c)
The Company will furnish to the Sales Agent, without charge, written and electronic copies of each of the Registration Statement and
of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, the Prospectus
(including all documents incorporated by reference therein), the Prospectus Supplement, each Issuer Free Writing Prospectus and all amendments
and supplements thereto that are filed with the Commission during any period that a Prospectus relating to the Placement Shares is required
to be delivered under the Act, in each case as soon as reasonably practicable and in such quantities as the Sales Agent may from time
to time reasonably request and, at the Sales Agent’s request, will also furnish copies of the Prospectus to each exchange or market
on which sales of the Placement Shares may be made; provided, however, that the Company shall not be required to furnish
any document (other than the Prospectus) to the Sales Agent to the extent such document is available on EDGAR.
(d)
The Company will use its best efforts to comply with all requirements imposed upon it by the Act and the Exchange Act as from time to
time in force, so far as necessary to permit the sales of, or dealings in, the Placement Shares as contemplated by the provisions hereof
and the Prospectus.
(e)
So long as delivery of the Prospectus relating to any Placement Shares may be required to be delivered by the Sales Agent or any dealer
under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations or
any similar rule), the Company will prepare and file with the Commission, promptly upon the Sales Agent’s request, any amendments
or supplements to the Registration Statement or the Prospectus that, in the Sales Agent’s reasonable opinion, may be necessary
or advisable in connection with the distribution of the Placement Shares by the Sales Agent (provided, however, that the
failure of the Sales Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the
Sales Agent’s right to rely on the representations and warranties made by the Company in this Agreement). The Company consents
to the use of the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto
by the Sales Agent and by all dealers to whom the Placement Shares may be sold, both in connection with the offering or sale of the Placement
Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith.
If during such period of time any event shall occur that in the judgment of the Company or counsel to the Sales Agent should be set forth
in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading,
or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will notify the Sales Agent to suspend the
offering of Placement Shares during such period and the Company will forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto, and will deliver to the Sales Agent, without charge, such number of copies of such supplement or amendment
to the Prospectus as the Sales Agent may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with
the information contained in the Registration Statement, the Prospectus Supplement or the Prospectus or included or would include an
untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Sales Agent
and, if requested by the Sales Agent, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(f)
The Company will use its reasonable best efforts and cooperate with the Sales Agent in connection with the registration or qualification
of the Placement Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Sales
Agent may request and to maintain such registration or qualification in effect for so long as required for the distribution of the Placement
Shares (but in no event for less than one year from the date of this Agreement); provided, that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject
it to general service of process in any jurisdiction where it is not now so subject. In each applicable jurisdiction, the Company will
file such statements and reports as may be required by the laws of such jurisdiction to continue such registration or qualification in
effect for so long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of
this Agreement).
(g)
The Company will, so long as required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end
of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of
the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after
the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the Effective Date),
consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h)
The Company will make generally available to holders of its securities as soon as practicable, but in no event later than 15 months after
the end of the Company’s current fiscal quarter, an earning statement covering a period of 12 months that satisfies the provisions
of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations), provided that the Company will be deemed to have furnished
such statement to its security holders to the extent it is available on EDGAR.
(i)
Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay
or reimburse if paid by the Sales Agent all costs and expenses incident to the performance of the obligations of the Company under this
Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating
to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, the Prospectus Supplement, the Prospectus,
any Issuer Free Writing Prospectus and any amendment or supplement to any of the foregoing, including any fees required by the Commission
in connection therewith, (ii) the preparation and delivery of certificates, if any, representing the Placement Shares, including any
stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery
of the Placement Shares to the Sales Agent, (iii) furnishing (including costs of shipping and mailing) such copies of the Registration
Statement, the Prospectus Supplement, the Prospectus and any Issuer Free Writing Prospectus, and all amendments and supplements thereto,
as may be requested by the Sales Agent for use in connection with the offering and sale of the Placement Shares, (iv) the listing of
the Placement Shares on the Exchange, (v) any filings required to be made in connection with clearance of the offering of the Placement
Shares with FINRA (including the fees, disbursements and other charges of counsel for the Sales Agent in connection therewith), (vi)
the registration or qualification of the Placement Shares for offer and sale under state or foreign securities or Blue Sky laws and the
preparation, printing and distribution of any Blue Sky memoranda (including the fees, disbursements and other charges of counsel to the
Sales Agent in connection therewith), (vii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (viii)
the transfer agent for the Placement Shares and (ix) all other costs and expenses of the Sales Agent incident to the performance of its
obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel
to the Sales Agent (in addition to those set forth in clauses (v) and (vi)); provided, however, that in no event under
this clause (x) shall the Company be required to pay or reimburse the Sales Agent costs and expenses in excess of $100,000 in connection
with the establishment of the ATM Program and $7,500 for each Representation Date.
(j)
The Company will not at any time, directly or indirectly, (i) take any action designed or that might reasonably be expected to cause
or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any
of the Placement Shares or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or pay anyone any compensation
for soliciting purchases of the Placement Shares other than the Sales Agent.
(k)
The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries will be
or become, at any time prior to the termination of this Agreement, required to register as an “investment company,” as such
term is defined in the Investment Company Act.
(l)
The Company will use the Net Proceeds in the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(m)
The Company and its Subsidiaries will maintain, or cause to be maintained, insurance in such amounts and covering such risks the Company
reasonably deems adequate.
(n)
The Company and each of its Subsidiaries will maintain, or cause to be maintained, all material permits, licenses (including without
limitation, those administered by the FDA or by any foreign, federal, state or local governmental or regulatory authority performing
functions similar to those performed by the FDA) and other authorizations required by foreign, federal, state and local law in order
to conduct their businesses as described in the Prospectus, and the Company and each of its Subsidiaries will conduct their businesses,
or cause their businesses to be conducted in substantial compliance with such permits, licenses and authorizations and with applicable
laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations would not reasonably be
expected to have a Material Adverse Effect.
(o)
The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting
controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles and including those policies and
procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and
dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the
preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles, (iii)
receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s directors’
authorization and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition
of the Company’s assets that could have a material effect on its financial statements. The Company and the Subsidiaries will maintain
such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act,
and the applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to
the Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such periodic
reports are being prepared.
(p)
Without the prior written consent of the Sales Agent, the Company will not, directly or indirectly, offer to sell, sell, contract to
sell, grant any option to sell or otherwise dispose of any shares of Common Stock (other than the Placement Shares offered pursuant to
this Agreement) or securities convertible into or exchangeable or exercisable for shares of Common Stock, warrants or any rights to purchase
or acquire, shares of Common Stock during the period beginning on the fifth Trading Day immediately prior to the date on which any Placement
Notice is delivered to Sales Agent hereunder and ending on the fifth Trading Day immediately following the final Settlement Date with
respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior
to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly
or indirectly in any other “at the market offering” or continuous equity transaction offer (as defined in Rule 415(a)(4)
of the Rules and Regulations) to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other
than the Placement Shares offered pursuant to this Agreement) or securities convertible into or exchangeable or exercisable for shares
of Common Stock, warrants or any rights to purchase or acquire, shares of Common Stock prior to the later of the termination of this
Agreement and the sixtieth day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such
Placement Notice; provided, however, that such restrictions will not be required in connection with the Company’s
issuance or sale of (i) shares of Common Stock, options to purchase shares of Common Stock or shares of Common Stock issuable upon the
exercise of options, pursuant to any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment
plan (but not shares Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether
now in effect or hereafter implemented, (ii) shares of Common Stock issuable upon conversion of securities or the exercise of warrants,
options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing
to the Sales Agent and (iii) shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration
for mergers, acquisitions, other business combinations or strategic alliances occurring after the date of this Agreement which are not
issued for capital raising purposes.
(q)
Prior to the date of the first Placement Notice, the Company will use its commercially reasonable efforts to cause the Placement Shares
to be listed on the Exchange or maintain the listing of the Placement Shares, as applicable, and timely file with the Exchange all material
documents and notices as required by the Exchange of companies that have or will issue Shares that are traded on the Exchange.
(r)
The Company will, at any time during the pendency of a Placement Notice, advise the Sales Agent promptly after it shall have received
notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate,
letter or other document required to be provided to the Sales Agent pursuant to this Agreement.
(s)
The Company will cooperate with any reasonable due diligence review conducted by the Sales Agent, its representatives and its counsel
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents
and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Sales Agent may reasonably
request.
(t)
The Company agrees that on or prior to such dates as the Act shall require, the Company will (i) file a prospectus supplement with the
Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, within the relevant period, the
number or amount of Placement Shares sold through the Sales Agent, the Net Proceeds to the Company and the compensation payable by the
Company to the Sales Agent with respect to such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement
to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market;
provided, that, unless a prospectus supplement containing such information is required to be filed under the Act, the requirement
of this Section 7(t) may be satisfied by Company’s inclusion in the Company’s Form 10-K or Form 10-Q, as applicable, of the
number or amount of Placement Shares sold through the Sales Agent, the Net Proceeds to the Company and the compensation payable by the
Company to the Sales Agent with respect to such Placement Shares during the relevant period.
(u)
Prior to the date on which the Company first delivers a Placement Notice and each time the Company:
i.
files the Prospectus relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to
an offering of securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares
by means of a post-effective amendment, sticker or supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Placement Shares;
ii.
files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material
amendment to the previously filed Form 10-K);
iii.
files a quarterly report on Form 10-Q under the Exchange Act; or
iv.
files a current report on Form 8-K containing amended financial information (other than information “furnished” pursuant
to Items 2.02 or 7.01 of Form 8-K) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses
(i) through (iv) shall be a “Representation Date”),
the
Company shall furnish the Sales Agent (but in the case of clause (iv) above only if the Sales Agent reasonably determines that the information
contained in such Form 8-K is material at a time when a Placement Notice is pending or in effect and the Sales Agent requests a certificate
within three Trading Days of the Company’s filing of such Form 8-K) with a certificate, in the form attached hereto as Exhibit
A, dated the Representation Date, modified, as necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented.
The requirement to provide a certificate under this Section 7(u) shall be waived for any Representation Date occurring at a time during
which no Placement Notice is pending or a Suspension is in effect, which waiver shall continue until the earlier to occur of the date
on which the Company delivers instructions for the sale of Placement Shares hereunder (which for such calendar quarter shall be considered
a Representation Date) and the next occurring Representation Date; provided, however, that such waiver shall not apply
for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding the foregoing, if the Company
subsequently decides to sell Placement Shares following a Representation Date when a Suspension was in effect and did not provide the
Sales Agent with a certificate under this Section 7(u), then before the Company delivers the instructions for the sale of Placement Shares
or the Sales Agent sells any Placement Shares pursuant to such instructions, the Company shall provide the Sales Agent with a certificate
in conformity with this Section 7(u) dated as of the date that the instructions for the sale of Placement Shares are issued.
(v)
Prior to the date of the first Placement Notice and within five Trading Days of each Representation Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 7(u) for which no Suspension or waiver is applicable, the Company shall cause
to be furnished to the Sales Agent (i) a written opinion and negative assurance letter of Stradling Yocca Carlson & Rauth LLP (“Company
Counsel”), or other counsel satisfactory to the Sales Agent and (ii) a written opinion of Kilpatrick Townsend & Stockton (“Company
IP Counsel”), each in form and substance satisfactory to Sales Agent and its counsel, modified, as necessary, to relate to the
Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinion
or negative assurance letter for subsequent Representation Dates, Company counsel may furnish the Sales Agent with a letter (a “Reliance
Letter”) to the effect that the Sales Agent may rely on a prior opinion or negative assurance letter delivered under this Section
7(v) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion or negative assurance
letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance
Letter).
(w)
Prior to the date of the first Placement Notice and within five Trading Days of each Representation Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 7(u) for which no Suspension or waiver is applicable, the Company shall cause
each of the Accountants to furnish the Sales Agent letters (“Comfort Letters”), dated the date the applicable Comfort Letters
are delivered, which shall meet the requirements set forth in this Section 7(w); provided, that if requested by the Sales Agent,
the Company shall cause the Comfort Letters to be furnished to the Sales Agent within 10 Trading Days of the date of occurrence of any
material transaction or event, including the restatement of the Company’s financial statements. Each Comfort Letter shall be in
form and substance satisfactory to the Sales Agent, (i) confirming that each of the Accountants, as applicable, is an independent registered
public accounting firm within the meaning of the Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by the Accountants’ “comfort letters”
to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letters”) and
(iii) in the case of Marcum, updating the Initial Comfort Letters with any information that would have been included in the Initial Comfort
Letters had they been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such letter. For the avoidance of doubt, Withum will only be required to provide the Initial Comfort
Letter.
(x)
Prior to the date of the first Placement Notice and within five Trading Days of each Representation Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 7(u) for which no Suspension or waiver is applicable, the Company shall furnish
a certificate of its chief financial officer with respect to certain financial data contained in the Prospectus, in the form attached
hereto as Exhibit B.
(y)
If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal Date”),
any of the Placement Shares remain unsold and this Agreement has not been terminated, the Company will, prior to the Renewal Date, file
a new shelf registration statement or, if applicable, an automatic shelf registration statement relating to the Common Stock that may
be offered and sold pursuant to this Agreement (which shall include a prospectus reflecting the number or amount of Placement Shares
that may be offered and sold pursuant to this Agreement), in a form satisfactory to the Sales Agent and its counsel, and, if such registration
statement is not an automatic shelf registration statement, will use its best efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Date. The Company will take all other reasonable actions necessary or appropriate to permit
the public offer and sale of the Placement Shares to continue as contemplated in the expired registration statement and this Agreement.
From and after the effective date thereof, references herein to the “Registration Statement” shall include such new shelf
registration statement or such new automatic shelf registration statement, as the case may be.
(z)
If, from and after the date of this Agreement, the Company is no longer eligible to use Form S-3 (including pursuant to General Instruction
I.B.6.) at the time it files with the Commission an annual report on Form 10-K or any post-effective amendment to the Registration Statement,
then it shall promptly notify the Sales Agent and, within two Business Days after the date of filing of such annual report on Form 10-K
or amendment to the Registration Statement, the Company shall file a new prospectus supplement with the Commission reflecting the number
of shares of Common Stock available to be offered and sold by the Company under this Agreement pursuant to General Instruction I.B.6.
of Form S-3; provided, however, that the Company may delay the filing of any such prospectus supplement for up to 30 days
if, in the reasonable judgment of the Company, it is in the best interest of the Company to do so, provided that no Placement Notice
is in effect or pending during such time. Until such time as the Company shall have corrected such misstatement or omission or effected
such compliance, the Company shall not notify the Sales Agent to resume the offering of Placement Shares.
(aa)
The Company represents and agrees that, without the prior written consent of the Sales Agent, and the Sales Agent represents and agrees
that, without the prior written consent of the Company, it (including its agents and representatives, other than the Sales Agent in its
capacity as such) has not made and will not make, use, prepare, authorize, approve or refer to any written communication that constitutes
an offer to sell or solicitation of an offer to buy Placement Shares hereunder or otherwise make any offer relating to the Placement
Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405), required to be filed with the Commission. Any such free writing prospectus the use of which has been consented
to by the Company and the Sales Agent, as the case may be, is herein called a “Permitted Free Writing Prospectus.” The Company
represents and agrees that it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and that it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Rules
and Regulations applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission, where required, recordkeeping
and legending. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Schedule 4
hereto are Permitted Free Writing Prospectuses.
8.
Conditions of the Obligations of the Sales Agent.
The
obligations of the Sales Agent hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the
representations and warranties made by the Company herein, to the due performance by the Company of its obligations hereunder, to the
completion by the Sales Agent of a due diligence review satisfactory to the Sales Agent, and to the continuing satisfaction (or waiver
by the Sales Agent in its sole discretion) of the following additional conditions:
(a)
The Registration Statement shall be effective and shall be available for the (i) resale of all Placement Shares issued to the Sales Agent
and not yet sold by the Sales Agent and (ii) sale of all Placement Shares contemplated to be issued by any Placement Notice. All filings
required by Rule 424 shall have been made, including timely filing of the Prospectus Supplement pursuant to Rule 424(b).
(b)
(i) No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus Supplement,
the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall be pending or threatened
by the Commission; (ii) no order suspending the qualification or registration of the Placement Shares under the securities or Blue Sky
laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated
by any applicable governmental authorities; (iii) the Company shall not have received 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; (iv) there
shall not have occurred or be continuing any event that makes any statement of a material fact made in the Registration Statement or
the Prospectus or any material Incorporated Document untrue in any material respect or that requires the making of any changes in the
Registration Statement, the Prospectus or Incorporated Documents so that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading and, in the case of the Prospectus, so that it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c)
The Sales Agent shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the Sales Agent’s opinion is material, or omits to state a fact that in the
Sales Agent’s opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d)
Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, (i) there shall not
have been (A) a Material Adverse Change or any material adverse change, on a consolidated basis, in the authorized capital stock of the
Company, (B) any Material Adverse Effect or the occurrence of any development that the Company reasonably expects would result in a Material
Adverse Effect or (C) any downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other than asset-backed
securities), if any, by any rating organization or a public announcement by any rating organization that it has under surveillance or
review its rating of any of the Company’s securities (other than asset-backed securities), if any, and (ii) neither the Company
nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion,
flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental
action, order or decree, if in the judgment of the Sales Agent (without relieving the Company of any obligation or liability it may otherwise
have), any such development makes it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and
in the manner contemplated in the Prospectus.
(e)
Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company, any of its Subsidiaries or any of its or their officers or directors in
their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment
of the Sales Agent, have a Material Adverse Effect or if, in the judgment of the Sales Agent, any such development makes it impracticable
or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(f)
Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of
any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the
case of any other representation and warranty), and all covenants and agreements contained herein to be performed on the part of the
Company and all conditions contained herein to be fulfilled or complied with by the Company shall have been duly performed, fulfilled
or complied with.
(g)
The Sales Agent shall have received an opinion and negative assurance letter, as applicable, from each of Company Counsel and Company
IP Counsel required to be delivered pursuant to Section 7(v) on or before the date on which delivery of such opinion and negative assurance
letter, as applicable, is required pursuant to Section 7(v).
(h)
The Sales Agent shall have received an opinion and negative assurance letter from DLA Piper LLP (US), counsel to the Sales Agent, on
or before the date on which delivery of the opinion of Company Counsel is required pursuant to Section 7(v), which opinion and negative
assurance letter shall be reasonably satisfactory in all respects to the Sales Agent, and the Company shall have furnished to such counsel
such documents as they may request to enable counsel to the Sales Agent to pass upon such matters.
(i)
The Sales Agent shall have received the Comfort Letters required to be delivered pursuant to Section 7(w) on or before the date on which
delivery of such Comfort Letters are required pursuant to Section 7(w).
(j)
The Sales Agent shall have received the certificate of its chief financial officer required to be delivered pursuant to Section 7(x)
on or before the date on which delivery of such certificate is required pursuant to Section 7(x).
(k)
The Sales Agent shall have received the certificate required to be delivered pursuant to Section 7(u) on or before the date on which
delivery of such certificate is required pursuant to Section 7(u).
(l)
Prior to the date of the first Placement Notice and at subsequent Representation Dates as may be requested by the Sales Agent, the Company
shall deliver to the Sales Agent a certificate of the Secretary of the Company and attested to by an executive officer of the Company,
dated as of such date and in form and substance satisfactory to the Sales Agent and its counsel, certifying as to (i) the Articles of
Incorporation of the Company, (ii) the Bylaws of the Company, (iii) the resolutions of the board of directors of the Company or a duly
authorized committee thereof authorizing the execution, delivery and performance of this Agreement and the issuance of the Placement
Shares and (iv) the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated by this
Agreement.
(m)
The Placement Shares shall be qualified for sale in such jurisdictions as the Sales Agent may reasonably request and each such qualification
shall be in effect and not subject to any stop order or other proceeding.
(n)
Either (i) the Placement Shares shall have been approved for listing on the Exchange, subject only to notice of issuance, or (ii) the
Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance of the first
Placement Notice and the Exchange shall have reviewed such application and not provided any objections thereto. Trading in the Common
Stock shall not have been suspended on the Exchange and the Common Stock shall not have been delisted from the Exchange.
(o)
All filings with the Commission required by Rule 424(b) or Rule 433 under the Act to have been filed prior to the issuance of any Placement
Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424(b) (without reliance on
Rule 424(b)(8)) or Rule 433, as applicable.
(p)
If applicable, FINRA shall have raised no objection to the terms of the offering contemplated hereby and the amount of compensation allowable
or payable to the Sales Agent as described in the Prospectus.
(q)
On each date on which the Company is required to deliver a certificate pursuant to Section 7(u), the Company shall have furnished to
the Sales Agent such further information, opinions, certificates, letters and other documents, in addition to those specifically mentioned
herein, as the Sales Agent may have reasonably requested. All such information, opinions, certificates, letters and other documents shall
have been in compliance with the provisions hereof.
(r)
There shall not have occurred any event that would permit the Sales Agent to terminate this Agreement pursuant to Section 11(a).
9.
Indemnification and Contribution.
(a)
The Company will indemnify and hold harmless the Sales Agent, its partners, members, directors, officers, employees, agents and affiliates
and each person, if any, who controls the Sales Agent within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, liabilities, expenses and damages (including any and all investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted),
to which they, or any of them, may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus Supplement, the Prospectus
or any amendment or supplement thereto or any Issuer Free Writing Prospectus or any “issuer information” filed or required
to be filed pursuant to Rule 433(d) of the Rules and Regulations, or the omission or alleged omission to state in such document a material
fact required to be stated in it or necessary to make the statements in it not misleading in the light of the circumstances in which
they were made, or arise out of or are based in whole or in part on any inaccuracy in the representations and warranties of the Company
contained herein or any failure of the Company to perform its obligations hereunder or under law in connection with the transactions
contemplated hereby; provided, however, that the Company will not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Placement Shares to any person by the Sales Agent and is based on the Sales Agent Information.
This indemnity agreement will be in addition to any liability that the Company might otherwise have.
(b)
The Sales Agent will indemnify and hold harmless the Company, each director of the Company, each director and each officer of the Company
who signs the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company to Sales Agent, as set forth in Section
9(a), but only insofar as losses, claims, liabilities, expenses or damages arise out of or are based on any untrue statement or omission
or alleged untrue statement or omission made in reliance on and in conformity with the Sales Agent Information. This indemnity will be
in addition to any liability that the Sales Agent might otherwise have.
(c)
Any party that proposes to assert the right to be indemnified under this Section 9 shall, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section
9, notify each such indemnifying party in writing of the commencement of such action, enclosing with such notice a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve it from any liability that it may have to any indemnified
party under the foregoing provisions of this Section 9 unless, and only to the extent that, such omission results in the loss of substantive
rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying
party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for
the reasonable and documented costs of investigation incurred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will
be at the expense of such indemnified party unless (i) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (ii) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (iii)
a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party), or (iv) the indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified party to assume the
defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the
reasonable and documented fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (plus local counsel)
admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such reasonable and documented
fees, disbursements and other charges will be reimbursed by the indemnifying party promptly as they are incurred. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect
of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party
unless such settlement (A) includes an unconditional release of such indemnified party, in form and substance reasonably satisfactory
to the indemnified party, from all liability on any claims that are the subject matter of such action 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 an indemnified party. An indemnifying party will
not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably
withheld or delayed).
(d)
If an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable and documented fees
and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by this
Section 9 effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement.
(e)
If the indemnification provided for in this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable
to or insufficient to hold harmless an indemnified party under this Section 9 in respect of any losses, claims, liabilities, expenses
and damages referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute
to the amount paid or payable (including any investigative, legal and other expenses reasonably incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by
the Company from persons other than the Sales Agent, such as persons who control the Company within the meaning of the Act, officers
of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution) by such indemnified
party as a result of such losses, claims, liabilities, expenses and damages in such proportion as shall be appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Sales Agent, on the other hand. The relative benefits received by
the Company, on the one hand, and the Sales Agent, on the other hand, shall be deemed to be in the same proportion as the total Net Proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by
the Sales Agent from the sale of the Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect
not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and
the Sales Agent, on the other hand, with respect to the statements or omissions that resulted in such loss, claim, liability, expense
or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company or the Sales Agent, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Sales Agent agree
that it would not be just and equitable if contributions pursuant to this Section 9(e) were to be determined by pro rata allocation or
by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss claim, liability, expense or damage, or action in respect thereof, referred to
above in this Section 9(e) shall be deemed to include, for purposes of this Section 9(e), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 9(e), the Sales Agent shall not be required to contribute any amount in excess of the commissions received by it and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9(e), any person who controls a party to
this Agreement within the meaning of the Act will have the same rights to contribution as that party, and each officer of the Company
who signed the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against any such party in
respect of which a claim for contribution may be made under this Section 9(e), will notify any such party or parties from whom contribution
may be sought, but the omission so to notify will not relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 9(e). No party will be liable for contribution with respect to any action or claim
settled without its written consent if such consent is required pursuant to Section 9 hereof.
(f)
The indemnity and contribution agreements contained in this Section 9 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of the
Sales Agent, (ii) acceptance of any of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
10.
Reimbursement of Certain Expenses.
In
addition to its other obligations under Section 9(a) of this Agreement, the Company hereby agrees to reimburse the Sales Agent on a quarterly
basis for all reasonable legal and other expenses incurred in connection with investigating or defending any claim, action, investigation,
inquiry or other proceeding arising out of or based upon, in whole or in part, any statement or omission or alleged statement or omission
or any inaccuracy in the representations and warranties of the Company contained herein or failure of the Company to perform its obligations
hereunder or under law, all as described in Section 9(a), notwithstanding the absence of a judicial determination as to the propriety
and enforceability of the obligations under this Section 10 and the possibility that such payment might later be held to be improper;
provided, however, that, to the extent any such payment is ultimately held to be improper, the persons receiving such payments
shall promptly refund them.
11.
Termination.
(a)
The obligations of the Sales Agent under this Agreement may be terminated and the Sales Agent may terminate this Agreement at any time,
by notice to the Company from the Sales Agent, without liability on the part of the Sales Agent to the Company if, in the sole judgment
of the Sales Agent, (i) there has been, since the time of execution of this Agreement or since the date as of which information is given
in the Prospectus, any Material Adverse Effect, any Material Adverse Change or any development that could reasonably be expected to result
in a Material Adverse Effect or a Material Adverse Change, whether or not arising in the ordinary course of business, which individually
or in the aggregate, in the sole judgment of the Sales Agent is material and adverse and makes it impractical or inadvisable to sell
the Placement Shares or to enforce contracts for the sale of the Placement Shares, (ii) trading in any of the equity securities of the
Company shall have been suspended or limited by the Commission or by the Exchange or trading of any securities of the Company on any
exchange or in the over-the-counter market shall have occurred and be continuing, (iii) trading in securities generally on the Exchange
shall have been suspended or limited or minimum or maximum prices shall have been generally established on the Exchange, or material
governmental restrictions shall have been imposed upon trading in securities generally by the Exchange, by order of the Commission or
any court or other governmental authority or by the Exchange, (iv) a banking moratorium shall have been declared by either federal or
New York State authorities or any material disruption of the securities settlement or clearance services in the United States shall have
occurred, or (v) any material adverse change in the financial or securities markets in the United States or elsewhere or in political,
financial or economic conditions in the United States or elsewhere, any outbreak or material escalation of hostilities, a declaration
of a national emergency or war, or other calamity or crisis, either within or outside the United States, shall have occurred, the effect
of which is such as to make it, in the sole judgment of the Sales Agent, impracticable or inadvisable to sell the Placement Shares or
to enforce contracts for the sale of the Placement Shares. If this Agreement is terminated pursuant to this Section 11(a), neither party
shall have any liability to the other party, except that Sections 7(i), 9, 10 and 13 hereof shall remain in full force and effect notwithstanding
such termination; If the Sales Agent elects to terminate this Agreement as provided in this Section 11(a), the Sales Agent shall provide
the required notice as specified in Section 13.
(b)
The Company shall have the right, by giving 10 days’ prior notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Sections 7(i), 9, 10 and 13 hereof shall remain in full force and effect notwithstanding such termination.
(c)
The Sales Agent shall have the right, by giving 10 days’ prior notice as hereinafter specified to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Sections 7(i), 9, 10 and 13 hereof 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 11(a), (b), or (c) above or otherwise by
mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be
deemed to provide that Sections 7(i), 9, 10 and 13 hereof shall remain in full force and effect.
(e)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Sales Agent or
the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this Agreement.
12.
No Fiduciary Relationship.
Notwithstanding
any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently
made by the Sales Agent, the Company acknowledges and agrees that (a) the offering and sale of the Placement Shares pursuant to this
Agreement is an arm’s-length commercial transaction between the Company and the Sales Agent,(b) the Sales Agent is acting solely
as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this
Agreement and the process leading to such transactions, and the Sales Agent has not assumed an advisory or fiduciary responsibility in
favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Sales
Agent has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations
expressly set forth in this Agreement, (c) the Sales Agent and its affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company and the Sales Agent has no obligation to disclose or account to the Company for any of
such differing interests, and (d) the Company has consulted its own legal, tax, accounting and financial advisors to the extent it deemed
appropriate, is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions
contemplated by this Agreement and has not relied upon the Sales Agent or legal counsel for the Sales Agent for any legal, tax, accounting
and financial advice in connection with the offering and sale of the Placement Shares. The Company hereby waives any claim, and agrees
that it will not claim, that the Sales Agent or its affiliates have rendered advisory services of any nature or respect, or owe a fiduciary
or similar duty to the Company, in connection with the sale of Placement Shares under this Agreement or the process leading thereto.
The Company agrees that the Sales Agent and its affiliates shall not have any liability (whether direct or indirect, in contract, tort
or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right
of it or the Company, employees or creditors of Company.
13.
Miscellaneous.
(a)
Notice given pursuant to any of the provisions of this Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, Oncocyte Corporation, 15 Cushing, Irvine, CA 92618, Attention: Joshua
Riggs, email: jriggs@oncocyte.com, with a copy (which shall not constitute notice) to Stradling Yocca Carlson & Rauth LLP, 660 Newport
Center Drive, Suite 1600, Newport Beach, CA 92660, Attention: Pace McCaskill, email: PMcCaskill@stradlinglaw.com, or (b) if to the Sales
Agent, at the offices of Needham & Company, LLC, 250 Park Avenue, New York, NY 10177, Attention: Matthew Castrovince, email: mcastrovince@needhamco.com,
with a copy (which shall not constitute notice) to DLA Piper LLP (US), 1251 Avenue of the Americas, New York, NY 10020, Attention: Anna
K. Spence, email: anna.spence@us.dlapiper.com. Each party to this Agreement may change such address for notices by sending to the parties
to this Agreement written notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i)
when delivered personally or by verifiable electronic transmission (with an original to follow) on or before 4:30 p.m., New York City
time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier, (iii) on the Business Day actually received if deposited in the U.S. mail
(certified or registered mail, return receipt requested, postage prepaid) and (iv) by Electronic Notice as set forth in the following
paragraph. For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks in
New York City are open for business.
An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 13(a) if sent
to the electronic mail address specified by the receiving party in this Section 13(a). Electronic Notice shall be deemed received at
the time the party sending Electronic Notice receives actual acknowledgment of receipt from the person to whom notice is sent, other
than automatic reply. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a
nonelectronic form (“Nonelectronic Notice”), which shall be sent to the requesting party within 10 days of receipt of
the written request for Nonelectronic Notice.
(b)
This Agreement has been and is made solely for the benefit of the Sales Agent, the Company, and the persons referred to in Section 9,
and their respective successors and permitted assigns, and no other person shall acquire or have any right under or by virtue of this
Agreement. The term “successors and assigns” as used in this Agreement shall not include a purchaser, as such purchaser,
of Placement Shares. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the
other party; provided, however, that the Sales Agent may assign its rights and obligations hereunder to an affiliate thereof
without obtaining the Company’s consent.
(c)
The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to take into account any
stock split, stock dividend or similar event effected with respect to the Common Stock.
(d)
This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes the entire
agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto
with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and the Sales Agent.
(e)
This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and
to be performed entirely within such State and without regard to principles of conflicts of laws. Unless stated otherwise, specified
times of day refer to New York City time.
(f)
No implied waiver by a party shall arise in the absence of a waiver in writing signed by such party. No failure or delay in exercising
any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right, power, or privilege hereunder.
(g)
This Agreement may be signed in two or more counterparts with the same effect as if the signatures thereto and hereto were upon the same
instrument. Delivery of an executed Agreement by one party to the other may be made by electronic transmission (including any electronic
signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from
time to time, or other applicable law) and any counterpart so delivered shall be deemed to have been duly and validly delivered and be
valid and effective for all purposes.
(h)
In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect to
the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed
as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to
such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected
in this Agreement.
(i)
EACH OF THE COMPANY AND THE SALES AGENT HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON,
RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(j)
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in New York City, Borough
of Manhattan, for the adjudication of any dispute hereunder or in connection with any of the transactions contemplated hereby, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction
of any such court, that such suit, action or proceeding is brought in an inconvenient forum, or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy (certified or registered mail, return receipt requested) to such party at the address
in effect for notices under Section 13(a) of this Agreement and agrees that such service shall constitute good and sufficient notice
of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law.
(k)
For purposes of this Agreement:
i.
The section, exhibit and schedule headings herein are for convenience only and shall not affect the construction hereof.
ii.
Words defined in the singular shall have a comparable meaning when used in the plural, and vice versa.
iii.
The words “hereof,” “hereto,” “herein” and “hereunder” and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
iv.
Wherever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed
to be followed by the words “without limitation.”
v.
References herein to any gender shall include each other gender.
vi.
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.
vii.
All references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
viii.
All references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free
Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the
Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement
to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar
materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Sales Agent outside of the
United States.
[Signature
pages follow]
Please
confirm that the foregoing correctly sets forth the agreement among the Company and the Sales Agent.
|
Very truly yours, |
|
|
|
Oncocyte Corporation |
|
|
|
|
By:
|
/s/
Josh Riggs |
|
Name:
|
Josh
Riggs |
|
Title:
|
Chief
Executive Officer |
Confirmed
as of the date first
above
mentioned:
Needham & Company, LLC |
|
|
|
By:
|
/s/
Matthew Castrovince |
|
Name:
|
Matthew
Castrovince |
|
Title:
|
Managing
Director |
|
[Signature Page to Sales
Agreement]
SCHEDULE
1
Form
of Placement Notice
|
From:
|
Oncocyte
Corporation |
|
|
|
|
To:
|
Needham
& Company, LLC |
|
|
|
|
|
Attention:
Matthew Castrovince |
|
|
|
|
Subject:
|
Placement
Notice |
|
|
|
|
Date: |
[____],
20[____] |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the sales agreement between Oncocyte Corporation, a California corporation (the
“Company”), and Needham & Company, LLC (the “Sales Agent”), dated August 9, 2024 (the “Sales
Agreement), the Company hereby requests that the Sales Agent sell up to [[_____] shares] [an aggregate amount of $[__________]] of the
Company’s common stock, no par value per share (the “Shares”), at a minimum price of $[___] per share, during the time
period beginning [month, day, time] and ending [month, day, time][until all Shares that are the subject of this Placement Notice are
sold].
The
Company represents and warrants that each representation, warranty, covenant and other agreement of the Company contained in the Sales
Agreement is true and correct on the date hereof, and that the Prospectus, including the documents incorporated by reference therein,
and any applicable issuer free writing prospectus, as of the date hereof, do not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading.
Terms
used herein and not defined herein have the meanings ascribed to them in the Sales Agreement.
SCHEDULE
2
Compensation
SCHEDULE
3
Notice
Parties
SCHEDULE
4
Permitted
Free Writing Prospectus
EXHIBIT
A
Form
of Representation Date Certificate
EXHIBIT
B
Form
of Chief Financial Officer Certificate
Exhibit
5.1
![](https://www.sec.gov/Archives/edgar/data/1642380/000149315224030865/ex5-1_001.jpg) |
Stradling
Yocca Carlson & Rauth LLP |
660
Newport Center Drive, Suite 1600 |
Newport
Beach, CA 92660-6422 |
949
725 4000 |
stradlinglaw.com |
August
9, 2024
Oncocyte
Corporation
15
Cushing
Irvine,
California 92618
|
Re: |
Securities
Registered under Registration Statement on Form S-3 (File No. 333-281159) |
Ladies
and Gentlemen:
You
have requested our opinion with respect to certain matters in connection with the proposed offer and sale by Oncocyte Corporation, a
California corporation (the “Company”), of up to an aggregate of $7,500,000 of shares of the Company’s common
stock, no par value per share (the “Placement Shares”), pursuant to a Registration Statement on Form S-3 (File No.
333-281159) (the “Registration Statement”), which was filed under the Securities Act of 1933, as amended (the “Securities
Act”), with the U.S. Securities and Exchange Commission (“SEC”) on August 1, 2024 and declared effective
by the SEC on August 7, 2024, the base prospectus contained in the Registration Statement (the “Base Prospectus”),
and the prospectus supplement relating to the proposed offer and sale of the Placement Shares filed with the SEC on August 9,
2024 pursuant to Rule 424(b) of the rules and regulations under the Securities Act (the “Prospectus Supplement,” and
together with the Base Prospectus, the “Prospectus”). We understand that the Placement Shares are proposed to be offered
and sold by the Company through Needham & Company, LLC (the “Agent”) pursuant to the Sales Agreement dated August
9, 2024, by and between the Company and the Agent (the “Sales Agreement”).
In
connection with the preparation of this opinion, we have examined such documents and considered such questions of law as we have deemed
necessary or appropriate. We have assumed the authenticity of all documents submitted to us as originals, the conformity to originals
of all documents submitted to us as copies thereof and the genuineness of all signatures. As to questions of fact material to our opinions,
we have relied upon the certificates of certain officers of the Company without independent investigation or verification.
Based
on the foregoing, we are of the opinion that the Placement Shares have been duly authorized and, when issued and sold in the manner described
in the Registration Statement, the Prospectus and the Sales Agreement, will be validly issued, fully paid and non-assessable.
We
render this opinion only with respect to the laws of the State of California, and we express no opinion herein concerning the application
or effect of the laws of any other jurisdiction.
We
hereby consent to the use of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed with the SEC on the
date hereof, which is incorporated by reference into the Registration Statement, and further consent to the reference to us in the Registration
Statement and any amendments thereto. In giving such consent, we do not hereby admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
This
opinion is intended solely for use in connection with the offer and sale of the Placement Shares pursuant to the Registration Statement
and is not to be relied upon for any other purpose or delivered to or relied upon by any other person without our prior written consent.
This opinion is rendered as of the date hereof and based solely on our understanding of facts in existence as of such date after the
examination described in this opinion. We assume no obligation to advise you of any fact, circumstance, event or change in the law or
the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed
herein.
|
Very
truly yours, |
|
|
|
Stradling
Yocca Carlson & Rauth LLP |
|
|
|
/s/
Stradling Yocca Carlson & Rauth LLP |
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