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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): June 28, 2023
CORMEDIX INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-34673 |
|
20-5894890 |
(State
or other jurisdiction of
incorporation or organization) |
|
(Commission
File Number) |
|
(I.R.S.
Employer
Identification No.) |
300 Connell Drive, Suite 4200
Berkeley Heights, NJ |
|
07922 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (908) 517-9500
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 (see General Instruction A.2, below):
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Exchange Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common stock, $0.001 par value |
|
CRMD |
|
Nasdaq Global Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
8.01 Other Events.
On
June 28, 2023, CorMedix Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting
Agreement”) with RBC Capital Markets, LLC and Truist Securities, Inc., as representatives of the several underwriters named
therein (the “Underwriters”), relating to the issuance and sale of an aggregate of 7,500,000 shares (the “Firm
Shares”) of the Company’s common stock, par value $0.001 per share (“Common Stock”), and, in lieu of Common
Stock to certain investors, pre-funded warrants to purchase 2,500,625 shares of Common Stock (the “Pre-Funded Warrants”)
to the Underwriters (the “Offering”). Pursuant to the Underwriting Agreement, the Company also granted the Underwriters
a 30-day option to purchase up to 1,500,093 additional shares (the “Option Shares” and together with the Firm Shares,
the “Shares”) of Common Stock. The Shares will be sold to the purchasers at the public offering price of $4.00 per share
and the Pre-Funded Warrants will be sold at a public offering price of $3.999 per Pre-Funded Warrant, which equals the per share
public offering price for the Shares less the $0.001 exercise price for each such Pre-Funded Warrant. The Underwriting Agreement
contains customary representations and warranties, conditions to closing, market standoff provisions, termination provisions and
indemnification obligations, including for liabilities under the Securities Act of 1933, as amended. The representations, warranties
and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, and
were solely for the benefit of the parties to the Underwriting Agreement.
The
Pre-Funded Warrants are exercisable at any time after the date of issuance. The exercise price and the number of shares of Common
Stock issuable upon exercise of each Pre-Funded Warrant is subject to appropriate adjustment in the event of certain stock dividends
and distributions, stock splits, stock combinations, reclassifications or similar events affecting Common Stock as well as upon any
distribution of assets, including cash, stock or other property, to the Company’s stockholders. The Pre-Funded Warrants will not
expire and are exercisable in cash or by means of a cashless exercise. A holder of Pre-Funded Warrants may not exercise the warrant if
the holder, together with its affiliates, would beneficially own more than 4.99% of the number of shares of Common Stock outstanding
immediately after giving effect to such exercise.
The
Company estimates that net proceeds from the Offering, after deducting underwriting discounts and commissions and estimated Offering
expenses payable by the Company, will be approximately $37.3 million, or approximately $43 million if the option to purchase
additional shares of Common Stock is exercised in full by the Underwriters. The Company expects the Offering to close on July 3,
2023, subject to the satisfaction of customary closing conditions. The Offering is being made pursuant to the shelf registration
statement on Form S-3 (File No. 333-258756) previously filed by the Company with the Securities and Exchange Commission (the
“SEC”) on August 12, 2021 and declared effective by the SEC on August 20, 2021, and a related prospectus
supplement dated June 28, 2023 and filed on June 30, 2023.
The
Underwriting Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K and the foregoing description of certain terms of
the Underwriting Agreement is qualified in its entirety by reference to such exhibit. The form of Pre-Funded Warrant is filed as
Exhibit 4.1 to this Current Report on Form 8-K and the foregoing description of the terms of the Pre-Funded Warrants is qualified in
its entirety by reference to such exhibit. A copy of the opinion of Morgan, Lewis & Bockius LLP relating to the legality of the
issuance and sale of the Shares and Pre-Funded Warrants in the Offering is filed with this Current Report on Form 8-K as Exhibit
5.1.
On
June 28, 2023, the Company issued a press release announcing that it had commenced the Offering. On June 28, 2023, the Company issued
a press release announcing that it had priced the Offering. Copies of these press releases are attached as Exhibits 99.1 and 99.2 hereto,
respectively.
Neither
the disclosures on this Current Report on Form 8-K nor the exhibits hereto shall constitute an offer to sell or the solicitation of an
offer to buy the securities described herein and therein, nor shall there be any sale of such 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 jurisdiction.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
|
CORMEDIX
INC. |
|
|
|
Date:
June 30, 2023 |
By: |
/s/
Joseph Todisco |
|
|
Joseph
Todisco |
|
|
Chief
Executive Officer |
Exhibit 1.1
CorMedix Inc.
7,500,000 Shares of Common Stock
Pre-Funded Warrants to Purchase Up to 2,500,625 Shares of Common Stock
($0.001 par value per share)
Underwriting Agreement
New York, New York
June 28, 2023
RBC Capital Markets, LLC
Truist Securities, Inc.
As Representatives of the several Underwriters
listed on Schedule I hereto
c/o |
RBC Capital Markets, LLC |
|
200 Vesey Street |
|
New York, New York 10281-8098 |
|
|
c/o |
Truist Securities, Inc. |
|
10 Hudson Yards, 37th Floor |
|
New York, New York 10001 |
Ladies and Gentlemen:
CorMedix Inc., a Delaware
corporation (the “Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “Underwriters”),
for whom you (the “Representatives”) are acting as representatives, (i) 7,500,000 shares of common stock, $0.001 par
value per share (“Common Stock”) of the Company (said shares to be issued and sold by the Company being hereinafter
called the “Underwritten Shares”) and (ii) pre-funded warrants to purchase up to an aggregate of 2,500,625 shares of
Common Stock in the form attached hereto as Exhibit A (the “Pre-Funded Warrants” and, together with the Underwritten
Shares, the “Underwritten Securities”). The Company also proposes to grant to the Underwriters an option to purchase
up to 1,500,093 additional shares of Common Stock (the “Option Securities”; the Option Securities, together with the
Underwritten Shares being hereinafter called the “Shares,” and the Option Securities, together with the Underwritten Securities
being hereinafter called the “Securities”). The shares of Common Stock issuable upon exercise of the Pre-Funded Warrants
are collectively herein referred to as the “Warrant Shares.”
1. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) Registration
Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (the “Act”), a shelf
registration statement (file number 333-258756) on Form S-3 and such registration statement has been declared effective as of the
Effective Date (as defined below) under the Act by the Commission. Such registration statement, as of any time, means such registration
statement as amended by any post-effective amendments thereto at such time, including the exhibits and any schedules thereto at such time,
the documents incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the Act and the documents otherwise
deemed to be a part thereof as of such time pursuant to Rule 430B (“Rule 430B”) under the Act (the “Rule 430B
Information”), is referred to herein as the “Registration Statement;” provided, however, that
the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective
amendments thereto as of the time of the first contract of sale for the Securities, which time shall be considered the “new effective
date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B of the Act,
including the exhibits and schedules thereto as of such time, the documents incorporated or deemed incorporated by reference therein at
such time pursuant to Item 12 of Form S-3 under the Act and the Rule 430B Information. Any registration statement filed pursuant to Rule 462(b)
of the Act is hereinafter called the “Rule 462(b) Registration Statement,” and after such filing the term “Registration
Statement” shall include the 462(b) Registration Statement. The base prospectus in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement is herein called the “Base Prospectus.” Each preliminary
prospectus supplement to the Base Prospectus (including the Base Prospectus as so supplemented), that describes the Securities and the
offering thereof, that omitted the Rule 430B Information and that was used prior to the filing of the final prospectus supplement referred
to in the following sentence is herein called a “Preliminary Prospectus.” Promptly after execution and delivery
of this Agreement, the Company will prepare and file with the Commission a final prospectus supplement to the Base Prospectus relating
to the Securities and the offering thereof in accordance with the provisions of Rule 430B and Rule 424(b) of the Act. Such final prospectus
supplement (including the Base Prospectus as so supplemented) in the form filed with the Commission pursuant to Rule 424(b) is herein
called the “Prospectus.” Any reference herein to the Base Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act as of
the date of such prospectus. “Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or becomes effective (including
each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Act).
For purposes of this Agreement,
all references to the Registration Statement, the Rule 462(b) Registration Statement, the Base Prospectus, any Preliminary Prospectus,
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 its Electronic Data Gathering, Analysis and Retrieval System or any successor system thereto (“EDGAR”). All
references in this Agreement to financial statements and schedules and other information which is “described,” “contained,”
“included” or “stated” in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information
which is incorporated by reference in or otherwise deemed by the Act to be a part of or included in the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to mean and include the
subsequent filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the
“Exchange Act”), and which is deemed to be incorporated by reference therein or otherwise deemed by the Exchange Act
to be a part thereof.
The term “Disclosure
Package” means (i) the Preliminary Prospectus, as most recently amended or supplemented immediately prior to 6:30 p.m.
Eastern Time (the “Execution Time”), (ii) any issuer free writing prospectus, as defined by Rule 433 of the Act
(an “Issuer Free Writing Prospectus”) identified in Schedule II hereto and (iii) any other free writing
prospectus, as defined by Rule 405 (a “Free Writing Prospectus”) that the parties hereto shall hereafter expressly
agree to treat as part of the Disclosure Package and (iv) the information set forth on Schedule III hereto.
(b) Preliminary
Prospectus. The Preliminary Prospectus when filed and the Registration Statement as of the Effective Date and as of the Execution
Time, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary
Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material
respects with the requirements of the Act; the documents incorporated by reference in the Registration Statement and the Prospectus, when
they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act.
(c) Registration
Statement and Prospectus. As of the Effective Date, the Execution Time, the Closing Date (as defined in Section 3 herein) and on any
date on which Option Securities are purchased, if such date is not the Closing Date (a “Settlement Date”), (i) the
Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not misleading; (ii) the Preliminary Prospectus does not, and
the Prospectus (together with any supplement thereto) will not, include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to the information contained in or omitted
from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8 hereof.
(d) No
Misstatement or Omission in Disclosure Package or Written Testing-the-Waters Communication. As of the Execution Time, the Closing
Date and the Settlement Date, as applicable, (i) the Disclosure Package, (ii) each electronic roadshow, and (iii) any individual Written
Testing-the-Waters Communication, when taken together as a whole with the Disclosure Package, did not, does not, and will not, contain
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from
the Disclosure Package or any electronic roadshow or any individual Written Testing-the-Waters Communication based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described
as such in Section 8 hereof.
(e) Compliance
with Registration Requirements. The Company has complied to the Commission’s satisfaction with all requests of the Commission
for additional or supplemental information. The Company satisfies all requirements of the Act for use of Form S-3. No stop order suspending
the effectiveness of the Registration Statement has been issued and, to the knowledge of the Company, no proceeding for that purpose has
been instituted or threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending
the use of the Prospectus has been issued and, to the knowledge of the Company, no proceeding for that purpose has been instituted by
the Commission or by the state securities authority of any jurisdiction.
(f) Ineligible
Issuer. (i) At the Effective Date and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(g) Issuer
Free Writing Prospectus. The Company is eligible to use Free Writing Prospectuses in connection with the sale of Securities pursuant
to Rules 164 and 433 under the Act; any Free Writing Prospectuses that the Company is required to file pursuant to Rule 433(d) under the
Act has been, or will be, filed with the Commission in accordance with the requirements of the Act; and each Free Writing Prospectus that
the Company has filed, or is required to file, pursuant to Rule 433(d) under the Act or that was prepared by or on behalf of or used by
the Company complies or will comply in all material respects with the requirements of the Act.
(h) Testing-the-Waters
Materials. The Company (i) has not alone engaged in any oral or written communication with potential investors (“Testing-the-Waters
Communication”) with respect to the Securities other than Testing-the-Waters Communications with the consent of the Representatives
with entities that are qualified institutional buyers within the meaning of Rule 144A under the Act or institutions that are accredited
investors within the meaning of Rule 501 under the Act and (ii) has not authorized anyone other than the Representatives to engage in
Testing-the-Waters Communications with respect to the Securities. The Company reconfirms that the Representatives have been authorized
to act on its behalf in undertaking Testing-the-Waters Communications with respect to the Securities. The Company has not distributed
any Written Testing-the-Waters Communications other than those listed on Schedule V hereto. “Written Testing-the-Waters
Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under
the Act. Any individual Written Testing-the-Waters Communication does not conflict with the information contained in the Registration
Statement, the Disclosure Package or the Prospectus.
(i) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus does not include any information
that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein
that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8 hereof.
(j) Copies
of Documents to Underwriters. The copies of each Preliminary Prospectus, each Issuer Free Writing Prospectus that is required
to be filed with the Commission pursuant to Rule 433 and the Prospectus and any amendments or supplements to any of the foregoing, that
have been delivered to the Underwriters in connection with the offering of the Securities (whether to meet the request of purchasers pursuant
to Rule 173(d) or otherwise) were identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T. For purposes of this Underwriting Agreement (this “Agreement”), references
to the “delivery” or “furnishing” of any of the foregoing documents to the Underwriters, and any similar terms,
include, without limitation, electronic delivery.
(k) Incorporated
Documents. All documents filed by the Company pursuant to Sections 12, 13, 14 or 15 of the Exchange Act and incorporated or
deemed to be incorporated by reference into the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus,
when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements
of the Act or the Exchange Act, as applicable and were filed on a timely basis with the Commission, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. There are no contracts or other documents required under the Exchange Act to
be described in such incorporated documents or to be filed as exhibits to such incorporated documents that have not been described or
filed as required. The Company is subject to, and is in compliance in all material respects with, the reporting requirements of Section
13 and Section 15(d), as applicable, of the Exchange Act.
(l) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement,
the Disclosure Package, the Preliminary Prospectus and the Prospectus, together with the related notes and schedules, present fairly,
in all material respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated
and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified
and have been prepared in compliance with the requirements of the Act, as applicable, and in conformity with generally accepted accounting
principles in the United States (“GAAP”) applied on a consistent basis (except for such adjustments to accounting standards
and practices as are noted therein) during the periods involved; the other financial and statistical data with respect to the Company
and the Subsidiaries contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus,
are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company;
there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration
Statement, the Disclosure Package or the Prospectus that are not included or incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off balance sheet obligations),
not described in the Registration Statement, the Disclosure Package and the Prospectus which are required to be described in the Registration
Statement, the Disclosure Package or Prospectus; and all disclosures contained or incorporated by reference in the Registration Statement,
the Disclosure Package and the Prospectus, if any, regarding “non-GAAP financial measures” (as such term is defined by the
rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Act, to
the extent applicable.
(m) Organization.
The Company and any subsidiary that is a significant subsidiary, if any (as such term is defined in Rule 1-02 of Regulation S-X promulgated
by the Commission) (each, a “Subsidiary”, collectively, the “Subsidiaries”), are, and will be, duly
organized, validly existing as a corporation and in good standing under the laws of their respective jurisdictions of organization. The
Company and the Subsidiaries are, and will be, duly licensed or qualified as a foreign corporation for transaction of business and in
good standing under the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such license or qualification, and have all corporate power and authority necessary to own or hold their
respective properties and to conduct their respective businesses as described in the Registration Statement, the Disclosure Package and
the Prospectus, except where the failure to be so qualified or in good standing or have such power or authority would not, individually
or in the aggregate, have a material adverse effect or would reasonably be expected to have a material adverse effect on the assets, business,
operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results of operations of
the Company and the Subsidiaries taken as a whole, or prevent the consummation of the transactions contemplated hereby (a “Material
Adverse Effect”).
(n) Subsidiaries.
As of the date hereof, the Company’s only Subsidiaries are set forth on Schedule IV. The Company owns directly or indirectly,
all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal
or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable and free of
preemptive and similar rights.
(o) No
Violation or Default. Neither the Company nor any Subsidiary is (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound
or to which any of the property or assets of the Company or any Subsidiary is subject; or (iii) in violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of each
of clauses (ii) and (iii) above, for any such violation or default that would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement to
which it or any Subsidiary is a party is in default in any respect thereunder where such default would reasonably be expected to have
a Material Adverse Effect.
(p) No
Material Adverse Effect. Since the date of the most recent financial statements of the Company included or incorporated by reference
in each of the Registration Statement, the Disclosure Package and the Prospectus, there has not been (i) any Material Adverse Effect,
or any development involving a prospective Material Adverse Effect, in or affecting the business, properties, management, condition (financial
or otherwise), results of operations, or prospects of the Company and the Subsidiaries taken as a whole, (ii) any transaction which is
material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent (including any
off-balance sheet obligations), incurred by the Company or the Subsidiaries, which is material to the Company and the Subsidiaries taken
as a whole, (iv) any material change in the capital stock (other than (A) the grant of additional options under the Company’s existing
stock option plans, (B) changes in the number of outstanding 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, (C) as a result of the
issuance of the Securities, (D) any repurchases of capital stock of the Company, (E) as described in a proxy statement filed on Schedule
14A or a Registration Statement on Form S-4, or (F) otherwise publicly announced) or outstanding long-term indebtedness of the Company
or the Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any
Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in each of the Registration Statement,
Disclosure Package or Prospectus.
(q) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and non-assessable and, other
than as disclosed in the Registration Statement, the Disclosure Package or the Prospectus, are not subject to any preemptive rights, rights
of first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement, the Disclosure Package and the Prospectus as of the dates referred to therein (other than (i) the grant of additional options
under the Company’s existing stock option plans, (ii) changes in the number of outstanding 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, (iii) as a result of the issuance of the Securities, or (iv) any repurchases of capital stock of the Company) and such authorized
capital stock conforms to the description thereof set forth in the Registration Statement, the Disclosure Package and the Prospectus.
The description of the Common Stock in the Registration Statement, the Disclosure Package and the Prospectus is complete and accurate
in all material respects. As of the date referred to therein, neither the Company nor the Subsidiaries have any outstanding options to
purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts
or commitments to issue or sell, any shares of capital stock or other securities.
(r) S-3
Eligibility. (i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company met the then applicable requirements for use of
Form S-3 under the Act, including compliance with General Instruction I.B.1 of Form S-3. The Company is not a shell company (as defined
in Rule 405 under the Act) and has not been a shell company for at least 12 calendar months previously and if it has been a shell company
at any time previously, has filed current Form 10 information (as defined in 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.
(s) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement, execute the Pre-Funded Warrants
and perform the transactions contemplated hereby and thereby. This Agreement has been duly authorized, executed and delivered by the Company
and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except to the
extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and by general equitable principles and (ii) the indemnification and contribution provisions of Section 8 hereof may
be limited by federal or state securities laws and public policy considerations in respect thereof.
(t) Authorization
of Securities. The Securities, and, upon exercise of the Pre-Funded Warrants, the Warrant Shares, when issued and delivered pursuant
to the terms approved by the board of directors of the Company or a duly authorized committee thereof, or a duly authorized executive
committee, against payment therefor as provided herein, will be duly and validly authorized and issued and fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest or other claim (other than any pledge, lien, encumbrance, security
interest or other claim arising from an act or omission of an Underwriter), including any statutory or contractual preemptive rights,
resale rights, rights of first refusal or other similar rights, and are registered pursuant to Section 12 of the Exchange Act. The Securities
and, upon exercise of the Pre-Funded Warrants, the Warrant Shares, when issued, will conform in all material respects to the descriptions
thereof contained in the Registration Statement, the Disclosure Package and the Prospectus. The Pre-Funded Warrants have been duly authorized
by the Company and, when executed and delivered by the Company pursuant to this Agreement, will constitute valid, legal and binding obligations
of the Company, enforceable in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the rights of creditors generally and subject to general principles of equity. The Warrant Shares have been
duly authorized and validly reserved for issuance upon exercise of the Pre-Funded Warrants and payment of the exercise price therefor
in a number sufficient to meet the current exercise requirements and, when issued and delivered in accordance with the terms thereof,
will be validly issued, fully paid and nonassessable, and the holders thereof will not be subject to personal liability by reason of being
such holders.
(u) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or
any governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement or in
connection with the transactions contemplated herein or in the Pre-Funded Warrants, and the issuance and sale by the Company of the Securities
and, upon exercise of the Pre-Funded Warrants, the Warrant Shares as contemplated hereby and thereby, except for such consents, approvals,
authorizations, orders and registrations or qualifications as may be required under applicable state securities laws or by the by-laws
and rules of the Financial Industry Regulatory Authority (“FINRA”) or the Nasdaq Global Market, including any notices
that may be required by the Nasdaq Global Market, in connection with the purchase and distribution of the Securities by the Underwriters
in the manner contemplated herein and in the Registration Statement, the Disclosure Package and the Prospectus.
(v) No
Preferential Rights. (i) No person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Act (each, a “Person”),
has the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other
capital stock or other securities of the Company (other than upon the exercise of options or warrants to purchase Common Stock or upon
the exercise of options that may be granted from time to time under the Company’s stock option plans), (ii) no Person has any preemptive
rights, rights of first refusal, 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 from the Company which have not been duly waived
with respect to the offering contemplated hereby, (iii) no Person has the right to act as an underwriter or as a financial advisor to
the Company in connection with the offer and sale of the Common Stock, and (iv) no Person has the right, contractual or otherwise, to
require the Company to register under the Act any Common Stock or shares of any other capital stock or other securities of the Company,
or to include any such shares or other securities in the Registration Statement or the offering contemplated thereby, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of the Securities and, upon exercise of the Pre-Funded Warrants,
the Warrant Shares, as contemplated thereby or otherwise.
(w) Independent
Public Accountants. Marcum LLP and Friedman LLP, who have certified certain financial statements of the Company and delivered their
report with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, are independent public accountants with respect to the Company within the meaning
of the Act and the applicable published rules and regulations thereunder. To the Company’s knowledge, with due inquiry, neither
Marcum LLP nor Friedman LLP is in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) with respect to the Company.
(x) Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the Disclosure Package and the Prospectus,
other than such agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company on EDGAR,
are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except to the extent that
(i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights
generally and by general equitable principles and (ii) the indemnification provisions of certain agreements may be limited by federal
or state securities laws or public policy considerations in respect thereof, and except for any unenforceability that, individually or
in the aggregate, would not unreasonably be expected to have a Material Adverse Effect.
(y) No
Litigation. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, there are no legal, governmental
or regulatory actions, suits or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory investigations,
to which the Company or a Subsidiary is a party or to which any property of the Company or any Subsidiary is the subject that, individually
or in the aggregate, if determined adversely to the Company or any Subsidiary, would reasonably be expected to have a Material Adverse
Effect or materially and adversely affect the ability of the Company to perform its obligations under this Agreement; to the Company’s
knowledge, no such actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened
by others that, individually or in the aggregate, if determined adversely to the Company or any Subsidiary, would reasonably be expected
to have a Material Adverse Effect; and there are no current or pending legal, governmental or regulatory investigations, actions, suits
or proceedings that are required under the Act to be described in the Registration Statement, Disclosure Package and Prospectus that are
not described in the Registration Statement, Disclosure Package and Prospectus including any Incorporated Document.
(z) Licenses
and Permits. The Company and the Subsidiaries possess or have obtained, all licenses, certificates, consents, orders, approvals, permits
and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Registration Statement, the Disclosure Package and the Prospectus (the “Permits”),
except where the failure to possess, obtain or make the same would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. Neither the Company nor any Subsidiary have received written notice of any proceeding relating to revocation
or modification of any such Permit or has any reason to believe that such Permit will not be renewed in the ordinary course, except where
the failure to obtain any such renewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(aa) No Material Defaults.
Neither the Company nor any Subsidiary has defaulted on any installment on indebtedness for borrowed money or on any rental on one or
more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report on
Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted
on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(bb) Certain Market Activities.
Neither the Company, nor any Subsidiary, nor any of their respective directors, officers or controlling persons has taken, directly or
indirectly, any action designed, or that has constituted or would reasonably be expected to cause or result in, under the Exchange Act
or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(cc) Broker/Dealer Relationships.
Neither the Company nor any Subsidiary or any related entities (i) is required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls or is
a “person associated with a member” or “associated person of a member” (within the meaning set forth in the FINRA
Manual).
(dd) No Reliance.
The Company has not relied upon the Underwriters or legal counsel for the Underwriters for any legal, tax or accounting advice in connection
with the offering and sale of the Securities.
(ee) Taxes. The Company
and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed and paid all taxes
shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in good faith, except
where the failure to do so would not reasonably be expected to have a Material Adverse Effect and except as set forth in or contemplated
in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). Except as otherwise disclosed
in or contemplated by the Registration Statement, the Disclosure Package or the Prospectus (exclusive of any supplement thereto), no tax
deficiency has been determined adversely to the Company or any Subsidiary which has had, or would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency,
penalty or assessment which has been or might be asserted or threatened against it which could have a Material Adverse Effect.
(ff) Title to Real and
Personal Property. The Company and the Subsidiaries have good and valid title in fee simple to all items of real property and good
and valid title to all personal property described in the Registration Statement, the Disclosure Package or Prospectus as being owned
by them that are material to the businesses of the Company or such Subsidiary, in each case free and clear of all liens, encumbrances
and claims, except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company
and the Subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Any
real property described in the Registration Statement, Disclosure Package or Prospectus as being leased by the Company and the Subsidiaries
is held by them under valid, existing and enforceable leases, except those that (A) do not materially interfere with the use made or proposed
to be made of such property by the Company or the Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate,
to have a Material Adverse Effect.
(gg) Intellectual Property.
The Company and the Subsidiaries own, possess, license or have adequate enforceable rights to use all patents, patent applications, trademarks
(both registered and unregistered), service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses
and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures)
(collectively, the “Intellectual Property”), necessary for the conduct of their respective businesses as conducted
as of the date hereof or as proposed in the Prospectus to be conducted, except to the extent that the failure to own or possess adequate
rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; the Company and the Subsidiaries have not received any written notice of any claim of infringement of or conflict with asserted
Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision, would result in a Material
Adverse Effect; there are no pending, or to the Company’s knowledge, threatened judicial proceedings or administrative proceedings
against the Company or its Subsidiaries challenging the Company’s or any of its Subsidiary’s rights in or to or the validity
of the scope of any of the Company’s or any Subsidiary’s patents, patent applications or proprietary information; no other
entity or individual has any right or claim in any of the Company’s or any of its Subsidiary’s patents, patent applications
or any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between such entity or individual
and the Company or any Subsidiary or by any non-contractual obligation, other than by written licenses granted by the Company or any Subsidiary;
the Company and the Subsidiaries have not received any written notice of any claim challenging the rights of the Company or its Subsidiaries
in or to any Intellectual Property owned, licensed or optioned by the Company or any Subsidiary which claim, if the subject of an unfavorable
decision would result in a Material Adverse Effect.
(hh) Environmental Laws.
The Company and the Subsidiaries (i) are, and at all prior times were, in compliance with any and all applicable federal, state, local
and foreign laws, rules, regulations, decisions and orders relating to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received
and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses as described in the Registration Statement, the Disclosure Package and the Prospectus; and (iii) have not received
notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply
or failure to receive required permits, licenses, other approvals or liability as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; and (iv) except as described in each of the Registration Statement, the Disclosure Package
and the Prospectus, (x) there are no proceedings that are pending, or that are known to be contemplated, against the Company or any Subsidiary
under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $300,000 or more will be imposed, (y) the Company and the Subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances
or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on the capital expenditures or earnings
or financial position of the Company and the Subsidiaries, and (z) none of the Company and the Subsidiaries anticipates material capital
expenditures relating to any Environmental Laws.
(ii) Disclosure
Controls. The Company and the Subsidiaries maintain systems of internal accounting controls designed to provide reasonable assurance
that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Neither the Company nor the Subsidiaries are aware of any material weaknesses in its internal control over financial reporting. Since
the date of the latest audited financial statements of the Company included in the Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting. The Company has established disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material information relating
to the Company and the Subsidiaries is made known to the certifying officers by others within those entities, particularly during the
period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared.
The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date within
90 days prior to the filing date of the Form 10-K for the fiscal year most recently ended (such date, the “Evaluation Date”).
The Company presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the most recent Evaluation Date. Since the most recent Evaluation
Date, there have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation
S-K under the Act) or, to the Company’s knowledge, in other factors that could significantly affect the Company’s internal
controls. To the knowledge of the Company and the Subsidiaries, the “internal controls over financial reporting” and “disclosure
controls and procedures” of the Company and the Subsidiaries, respectively, are effective.
(jj) Sarbanes-Oxley Act.
There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors
or officers, in their capacities as such, to comply with any applicable provisions of the Sarbanes-Oxley Act and the rules and regulations
promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each former principal
executive officer of the Company and each former principal financial officer of the Company as applicable) has made all certifications
required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents
required to be filed by it or furnished by it to the Commission during the past 12 months. For purposes of the preceding sentence, “principal
executive officer” and “principal financial officer” shall have the meanings given to such terms in the Exchange Act
Rules 13a-15 and 15d-15.
(kk) Finder’s Fees.
Neither the Company nor any Subsidiary has incurred any liability for any finder’s fees, brokerage commissions or similar payments
in connection with the transactions herein contemplated, except as may otherwise exist with respect to the Underwriters pursuant to this
Agreement.
(ll) Labor Disputes.
No labor disturbance by or dispute with employees of the Company or any Subsidiary exists or, to the knowledge of the Company, is threatened,
which would reasonably be expected to result in a Material Adverse Effect.
(mm) Investment Company
Act. Neither the Company nor any Subsidiary is or, after giving effect to the offering and sale of the Securities, will be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(nn) Operations. The
operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable financial record
keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions to which the Company or the Subsidiaries are subject, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”), except as would not reasonably be expected to result in a Material Adverse Effect; 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 Subsidiary with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(oo) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or, to the
knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structured finance,
special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that could reasonably be expected
to affect materially the Company’s liquidity or the availability of or requirements for its capital resources, including those Off
Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of Financial
Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Registration Statement,
the Disclosure Package or the Prospectus which have not been described as required.
(pp) Underwriter Agreements.
Other than that certain At-the-Market Issuance Sales Agreement, dated August 12, 2021, by and among the Company, Truist Securities, Inc.
and JMP Securities LLC, the Company is not a party to any agreement with an agent or underwriter for any other “at the market”
or continuous equity transaction.
(qq) ERISA. To the
knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and the Subsidiaries has been maintained in material compliance with its terms
and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the “Code”); no prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred which would result in a material liability to the Company with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption; and for each such plan that is subject to the funding rules of Section 412
of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred,
whether or not waived, and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions.
(rr) Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) (a “Forward-Looking
Statement”) contained in the Registration Statement, the Disclosure Package and the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith. The Forward-Looking Statements incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus from the Company’s Annual Report on Form 10-K for the fiscal year most recently
ended (i) except for any Forward-Looking Statement included in any financial statements and notes thereto, are within the coverage of
the safe harbor for forward looking statements set forth in Section 27A of the Act, Rule 175(b) under the Act or Rule 3b-6 under the Exchange
Act, as applicable, (ii) were made by the Company with a reasonable basis and in good faith and reflect the Company’s good faith
commercially reasonable best estimate of the matters described therein as of the respective dates on which such statements were made,
and (iii) have been prepared in accordance with Item 10 of Regulation S-K under the Act.
(ss) Margin Rules.
Neither the issuance, sale and delivery of the Securities and, upon exercise of the Pre-Funded Warrants, the Warrant Shares, nor the application
of the proceeds thereof by the Company as described in each of the Registration Statement, the Disclosure Package and the Prospectus will
violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(tt) Insurance. The
Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and the Subsidiaries
reasonably believe are adequate for the conduct of their business and as is customary for companies of similar size engaged in similar
businesses in similar industries.
(uu) No Improper Practices.
(i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries, nor to the Company’s knowledge, any of their respective
executive officers has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully
to disclose any contribution in violation of law) or made any contribution or other payment to any official of, or candidate for, any
federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of any law
or of the character required to be disclosed in the Disclosure Package and the Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or, to the Company’s knowledge, the Subsidiaries or any affiliate of any of them, on the one hand,
and the directors, officers and stockholders of the Company or, to the Company’s knowledge, the Subsidiaries, on the other hand,
that is required by the Act to be described in the Registration Statement, Disclosure Package and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among the Company or the Subsidiaries or any affiliate of them, on the one
hand, and the directors, officers, stockholders or directors of the Company or, to the Company’s knowledge, the Subsidiaries, on
the other hand, that is required by the rules of FINRA to be described in the Registration Statement, the Disclosure Package and the Prospectus
that is not so described; (iv) there are no material outstanding loans or advances or material guarantees of indebtedness by the Company
or, to the Company’s knowledge, the Subsidiaries to or for the benefit of any of their respective officers or directors or any of
the members of the families of any of them; and (v) the Company has not offered, or caused any Underwriter to offer, Common Stock to any
person with the intent to influence unlawfully (A) a customer or supplier of the Company or the Subsidiaries to alter the customer’s
or supplier’s level or type of business with the Company or the Subsidiaries or (B) a trade journalist or publication to write or
publish favorable information about the Company or the Subsidiaries or any of their respective products or services, and, (vi) neither
the Company nor the Subsidiaries nor, to the Company’s knowledge, any employee or agent of the Company or the Subsidiaries has made
any payment of funds of the Company or the Subsidiaries or received or retained any funds in violation of any law, rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of a character
required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus.
(vv) No Conflicts.
Neither the execution of this Agreement, nor the issuance, offering and sale of the Securities and, upon exercise of the Pre-Funded Warrants,
the Warrant Shares nor the consummation of any of the transactions contemplated herein (including the execution of the Pre-Funded Warrants)
nor the fulfillment of the terms hereof or thereof, nor the compliance by the Company with terms and provisions hereof or thereof will
conflict with, or will result in a breach or violation of, any of the terms and provisions of, or has constituted or will constitute a
default under, or has resulted in or will result in the creation, or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary pursuant to the terms of any contract or other agreement to which the Company or any Subsidiary
may be bound or to which any of the property or assets of the Company or any Subsidiary is subject, except (i) such conflicts, breaches
or defaults as may have been waived and (ii) such conflicts, breaches and defaults that would not reasonably be expected to have a Material
Adverse Effect; nor will such action result (x) in any violation of the provisions of the organizational or governing documents of the
Company or any Subsidiary, or (y) in any material violation of the provisions of any statute or any order, rule or regulation applicable
to the Company or any Subsidiary or of any court or of any federal, state or other regulatory authority or other government body having
jurisdiction over the Company, except where such violation would not reasonably be expected to have a Material Adverse Effect.
(ww) Compliance with Applicable
FDA Laws. Except as described in the Registration Statement, Disclosure Package and Prospectus, the Company and the Subsidiaries:
(i) are and at all times have been in material compliance with all statutes, rules, regulations and requirements applicable to the ownership,
testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage,
import, export or disposal of any product under development, manufactured or distributed by the Company or the Subsidiaries (“Applicable
Laws”), (ii) have not received any Form FDA 483 from the U.S. Food and Drug Administration (the “FDA”), notice
of adverse finding, warning letter, or other written correspondence or notice from the FDA, the European Medicines Agency (the “EMA”),
or any other federal, state, local or foreign governmental or regulatory authority alleging or asserting material noncompliance with any
Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required
by any such Applicable Laws (“Authorizations”), which would, individually or in the aggregate, result in a Material
Adverse Effect; (iii) possess all material Authorizations and such Authorizations are valid and in full force and effect and neither the
Company nor the Subsidiaries is in material violation of any term of any such Authorizations; (iv) have not received written notice of
any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from the FDA, the EMA, or any other
federal, state, local or foreign governmental or regulatory authority or third party alleging that any Company product, operation or activity
is in material violation of any Applicable Laws or Authorizations and has no knowledge that the FDA, the EMA, or any other federal, state,
local or foreign governmental or regulatory authority or third party is considering any such claim, litigation, arbitration, action, suit,
investigation or proceeding against the Company; (v) have not received notice that the FDA, EMA, or any other federal, state, local or
foreign governmental or regulatory authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any material
Authorizations and has no knowledge that the FDA, EMA, or any other federal, state, local or foreign governmental or regulatory authority
is considering such action; (vi) have filed, obtained, maintained or submitted all reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations except where the failure to file
such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments would not result in
a Material Adverse Effect, and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments were materially complete and correct on the date filed (or were corrected or supplemented by a subsequent submission); and
(vii) and along with its employees, officers and directors, have not been excluded, suspended or debarred from participation in any government
health care program or human clinical research or, to the Company’s knowledge, is subject to a governmental inquiry, investigation,
proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(xx) Compliance
with Applicable Healthcare Laws. Except as described in the Registration Statement, Disclosure Package and Prospectus, the Company
and the Subsidiaries are and at all times have been in material compliance with: (i) the federal Anti-Kickback Statute (42 U.S.C. §
1320a-7b(b)); (ii) the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)); (iii) the civil False Claims Act (31 U.S.C. §§
3729 et seq.); (iv) the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)); (v) the exclusion Laws (42 U.S.C. § 1320a-7);
(vi) Medicare (Title XVIII of the Social Security Act) and Medicaid (Title XIX of the Social Security Act); and (vii) all applicable laws,
regulations and requirements governing the licensure, accreditation, certification and operation of the Company’s business, including
related regulations and guidance.
(yy) Clinical Studies.
All animal and other preclinical studies and clinical trials conducted by the Company or on behalf of the Company were, and, if still
pending are, to the Company’s knowledge, being conducted in all material respects in compliance with all Applicable Laws and in
accordance with experimental protocols, procedures and controls generally used by qualified experts in the preclinical study and clinical
trials of new drugs and biologics as applied to comparable products to those being developed by the Company; the descriptions of the results
of such preclinical studies and clinical trials contained in the Registration Statement, the Disclosure Package and the Prospectus are
accurate in all material respects, and, except as set forth in the Registration Statement and the Prospectus, the Company has no knowledge
of any other clinical trials or preclinical studies, the results of which reasonably call into question the clinical trial or preclinical
study results described or referred to in the Registration Statement, the Disclosure Package and the Prospectus when viewed in the context
in which such results are described; and the Company has not received any written notices or correspondence from the FDA, the EMA, or
any other domestic or foreign governmental agency requiring the termination or suspension of any preclinical studies or clinical trials
conducted by or on behalf of the Company that are described in the Registration Statement, the Disclosure Package and the Prospectus or
the results of which are referred to in the Registration Statement, the Disclosure Package and the Prospectus.
(zz) Compliance Program.
The Company has established and administers a compliance program applicable to the Company, to assist the Company and the directors, officers
and employees of the Company in complying with applicable regulatory guidelines (including, without limitation, those administered by
the FDA, the EMA, and any other foreign, federal, state or local governmental or regulatory authority performing functions similar to
those performed by the FDA or EMA), except where such noncompliance would not reasonably be expected to have a Material Adverse Effect.
(aaa) Transfer Taxes.
There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of this Agreement and the Pre-Funded Warrants or the issuance,
sale or delivery by the Company of the Securities and, upon exercise of the Pre-Funded Warrants, the Warrant Shares.
(bbb) Foreign Corrupt
Practices Act. Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of the Subsidiaries, or other person acting on behalf of the Company or the Subsidiaries,
(i) has used any funds of the Company or any Subsidiary for any unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic official or employee from funds of
the Company or any Subsidiary; (iii) is aware of or has taken any action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of
any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other
unlawful or improper payment or benefit. The Company, the Subsidiaries and, to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted, maintain and enforce, and will continue to maintain and enforce, policies
and procedures designed to promote and ensure continued compliance therewith.
(ccc) OFAC.
(1) The
Company represents that, neither the Company nor any Subsidiary (collectively, the “Entity”) or any director, officer,
employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in this paragraph (uu), “Person”)
that is, or is owned or controlled by a Person that is:
(a) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury
(“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor
(b) located,
organized or resident in a country or territory that is the subject of Sanctions.
(2) The
Entity represents and covenants that it will not, directly or indirectly, knowingly use the proceeds of the offering, 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 Person 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 Person (including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(3) The
Entity represents and covenants that, except as detailed in the Prospectus, for the past five years, it has not knowingly engaged in,
is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions.
(ddd) IT Systems.
The Company and the Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all
material respects as required in connection with the operation of the business of the Company and the Subsidiaries as currently conducted,
and, to the Company’s knowledge, are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and
other corruptants. Except as otherwise stated in the Registration Statement, the Disclosure Package and the Prospectus, the Company and
the Subsidiaries have implemented and maintained reasonable controls, policies, procedures, and safeguards designed to maintain and protect
their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including,
without limitation, (A) all personal, personally identifiable, sensitive, confidential or regulated data, including, without limitation,
such data of their respective customers, employees, suppliers, vendors and any third-party data maintained by or on behalf of them, (B)
any information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended;
(C) “personal data” as defined by the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679);
and (D) any information which would qualify as “protected health information” under the Health Insurance Portability and Accountability
Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”)
(“Personal Data”)) collected, processed, stored, transmitted or otherwise used in connection with their businesses,
and there have been no breaches, violations, outages, unauthorized uses of or accesses to the IT Systems or any Personal Data, or other
compromises of the IT Systems.
(eee) Data Privacy.
The Company and the Subsidiaries have complied, and are presently in compliance in all material respects, with all applicable state,
federal and foreign data privacy and security laws and regulations, including, without limitation, HIPAA and the GDPR (collectively,
the “Privacy Laws”), Privacy Policies (as defined below), contractual obligations, applicable laws, statutes,
judgments, orders, rules and regulations of any court or arbitrator or other governmental authority and any legal obligations
regarding the collection, use, transfer, import, export, storage, protection, disposal and disclosure of Personal Data by the
Company and the Subsidiaries and/or any third party acting upon their behalf and/ regarding the use and safeguarding of the IT
Systems (“Data Security Obligations”); neither the Company nor any Subsidiary has received any written
notification of or complaint regarding, and are aware of any other facts that, individually or in the aggregate, would reasonably
indicate material non-compliance with any Data Security Obligation; and there is no pending, or to the knowledge of the Company,
threatened, action, suit or proceeding by or before any court or governmental agency, authority or body pending or threatened
alleging non-compliance with any Data Security Obligation. The Company and the Subsidiaries have at all times taken steps reasonably
necessary in accordance with the requirements of applicable Data Security Obligations (including, without limitation, implementing
and monitoring compliance with adequate measures with respect to technical and physical security) to protect Personal Data against
loss and against unauthorized access, use, modification, disclosure or other misuse. The Company and the Subsidiaries have in place,
comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with its policies and
procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal
Data.
(fff) FINRA Exemption.
To enable the Underwriters to rely on Rule 5110(h)(1)(C) of FINRA, the Company represents that the Company (i) has a non-affiliate, public
common equity float of at least $150 million or a non-affiliate, public common equity float of at least $100 million and annual trading
volume of at least three million shares and (ii) has been subject to the Exchange Act reporting requirements for a period of at least
36 months.
(ggg) Related Party Transactions.
No relationship, direct or indirect, exists between or among the Company or any Subsidiary, on the one hand, and the directors, officers,
stockholders or other affiliates of the Company or any Subsidiary, on the other, which is required by the Act to be described in the Registration
Statement, the Disclosure Package and the Prospectus and that is not so described in each of the Registration Statement, the Disclosure
Package and the Prospectus. There are no outstanding loans, advances (except advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company or any affiliate of the Company to or for the benefit of any of the officers or
directors of the Company or any affiliate of the Company or any of their respective family members.
(hhh) Market-Related Data.
The statistical and market-related data included in the Registration Statement, the Disclosure Package and the Prospectus are based on
or derived from sources that the Company believes to be reliable and accurate. To the extent required, the Company has obtained written
consent to the use of such data from such sources.
Any certificate signed by
any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase
and Sale.
(a) Subject
to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company the amount of the Underwritten Shares
and Pre-Funded Warrants set forth opposite such Underwriter’s name in Schedule I hereto. The purchase price for each
Underwritten Share shall be $3.76 per share and the purchase price for the Pre-Funded Warrants shall be $3.759
(b) Subject
to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option
to the several Underwriters to purchase, severally and not jointly, up to 1,500,093 Option Securities at the same purchase price per share
as the Underwriters shall pay for the Underwritten Shares, less an amount per share equal to any dividends or distributions declared by
the Company and payable on the Underwritten Shares but not payable on the Option Securities. Said option may be exercised in whole or
in part at any time on or before the 30th day after the date of the Prospectus upon written or telegraphic notice by the Representatives
to the Company setting forth the number of shares of the Option Securities as to which the several Underwriters are exercising the option
and the Settlement Date. The number of Option Securities to be purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten
Shares, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.
3. Delivery
and Payment. Delivery of and payment for the Underwritten Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day immediately preceding the Closing Date) shall be made at 10:00 AM,
New York City time, on July 3, 2023, or at such time on such later date not more than three Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing
Date”). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company
by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Underwritten Shares and the Option
Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct. “Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
The Company and the Representatives
shall instruct purchasers of the Pre-Funded Warrants to make payment for the Pre-Funded Warrants on the Closing Date to the Company by
wire transfer of same day funds payable to the account specified by the Company at a purchase price of $3.999 per Pre-Funded Warrant,
in lieu of payment by the Representatives for such Pre-Funded Warrants, and the Company shall deliver such Pre-Funded Warrants to such
purchasers on the Closing Date in definitive form against such payment, in lieu of the Company’s obligation to deliver such Pre-Funded
Warrants to the Representatives; provided that the Representatives shall withhold $0.24 per Pre-Funded Warrant with respect to such Pre-Funded
Warrants as an offset against the payment owed by the Representatives to the Company with respect to the Underwritten Shares hereunder.
In the event that any purchaser
of the Pre-Funded Warrants fails to make payment to the Company for all or part of the Pre-Funded Warrants on the
Closing Date, the Representatives agree to make a payment to the Company for such Pre-Funded Warrants at a price per Pre-Funded
Warrant equal to $3.759 and the Company agrees to deliver such Pre-Funded Warrants to the Representatives on the Closing Date in definitive
form against such payment; provided, however, that the Representatives may elect, by written notice to the Company, to receive shares
of Common Stock at the purchase price for the Underwritten Shares in lieu of all or a portion of such Pre-Funded Warrants to
be delivered to the Representatives under this Agreement.
If the option provided for in
Section 2(b) hereof is exercised after the third Business Day immediately preceding the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 200 Vesey Street, New York, New York, on the date specified
by the Representatives (which shall be within three Business Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account specified by the Company. If settlement for the Option Securities
occurs after the Closing Date, the Company will deliver to the Representatives on the Settlement Date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6
hereof.
4. Offering
by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus
5. Agreements.
The Company agrees with the several Underwriters that:
(a) Prior
to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement
to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the Representatives (i) when the Prospectus and any supplement thereto, and any
Written Testing-the-Waters Communications shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when
any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering
of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by
the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Prospectus or for any additional information, including, but not limited to, any request for information concerning
any Testing-the-Waters Communication, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any Written Testing-the-Waters Communication or of any notice objecting
to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of
any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence
of any such suspension or objection to the use of the Registration Statement or the prevention or suspension of the use of any Written
Testing-the-Waters Communication and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal
of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement
or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as
soon as practicable.
(b) If,
at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure
Package would 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 at such time not misleading, the Company will (i) notify promptly
the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as
you may reasonably request.
(c) If,
at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading,
or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder,
the Company promptly will (i) notify the Representatives of any such event; (ii) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission
or effect such compliance; and (iii) supply any supplemented Prospectus to you in such quantities as you may reasonably request.
(d) During
the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13,
14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(e) As
soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement
or statements of the Company and the Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The
Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus
and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(g) The
Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives
may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that
in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(h) The
Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company
or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of Common Stock or shares of any class of capital stock of the Company or
any securities convertible into, or exercisable, or exchangeable for, any of the foregoing; or publicly announce an intention to effect
any such transaction, for a period of 90 days after the date of this Agreement, provided, however, that (i) the Company
may affect the transactions contemplated hereby, including the issuance of the Warrant Shares in connection with the exercise of the Pre-Funded
Warrants; (ii) the Company may issue and sell Common Stock pursuant to any employee stock plan, stock ownership plan, dividend reinvestment
plan or other compensation plan of the Company (including any amendments to such plans) in effect at the Execution Time; (iii) the Company
may issue Common Stock issuable upon the conversion of securities, the exercise of warrants or options or the settlement of restricted
stock units, performance stock units or deferred stock units, in each case, outstanding at the Execution Time; and (iv) the Company may
file any registration statement on Form S-8 or a successor form thereto relating to securities granted pursuant to or reserved for issuance
as described in clause (ii).
(i) The
Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or the Warrant Shares or to result in a violation of Regulation M.
(j) The
Company agrees to pay the costs and expenses relating to the following matters (provided, however, that the Company shall
have no obligation to reimburse any defaulting Underwriter pursuant to Section 8 hereof): (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Securities and the Warrant Shares, including any stamp or transfer
taxes in connection with the original issuance and sale of the Securities and the Warrant Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of
the Shares and the Warrant Shares on the Nasdaq Global Market; (vi) any registration or qualification of the Securities and the Warrant
Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made
with FINRA (including filing fees and the reasonable fees and expenses of counsel (together with the fees and expenses described in (vi)
above, not to exceed $10,000) for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the
Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It is understood,
however, that except as provided in this Section 5(j) and Section 7, the Underwriters will pay all of their own costs and expenses, including
the fees of counsel for the Underwriters.
(k) The
Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally
and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic roadshow.
Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
(l) If
at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written
Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will
(i) notify promptly the Representatives so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented;
(ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment
or supplement to the Representatives in such quantities as may be reasonably requested.
(m) The
Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the
Sarbanes-Oxley Act, and will use its reasonable best efforts to cause the Company’s directors and officers, in their capacities
as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
(n) The
Company will use the net proceeds received by the Company from the sale of the Securities by it in the manner specified in the Preliminary
Prospectus and Prospectus under the caption “Use of Proceeds.”
(o) The
Company shall, for a period of one year from the Closing Date, use its commercially reasonable efforts to maintain a registration statement
covering the Warrant Shares issuable upon exercise of the Pre-Funded Warrants, such that the Warrant Shares, when issued, will not be
subject to resale restrictions under the Act except to the extent that the holder thereof is an affiliate of the Company. The Company
shall, at all times while any Pre-Funded Warrants are outstanding, reserve and keep available out of the aggregate of its authorized but
unissued and otherwise unreserved shares of Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise
of such Pre-Funded Warrants, the number of Warrant Shares that are initially issuable and deliverable upon the exercise of the then-outstanding
Pre-Funded Warrants.
6. Conditions
to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained
herein as of the Execution Time, the Closing Date and any Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) The
Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material
required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or
any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The
Company shall have requested and caused Morgan, Lewis & Bockius LLP, counsel for the Company, to have furnished to the Representatives
their opinion or opinions, dated the Closing Date and addressed to the Representatives, in the form and substance reasonably satisfactory
to the Representatives.
(c) The
Company shall have requested and caused Wiley Rein LLP, regulatory counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) The
Company shall have requested and caused Pandiscio & Pandiscio, P.C., intellectual property counsel for the Company, to have furnished
to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory
to the Representatives.
(e) The
Representatives shall have received from Goodwin Procter LLP, counsel for the Underwriters, such opinion or letters, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure
Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such
matters.
(f) The
Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the principal
executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement
thereto, as well as each electronic roadshow used in connection with the offering of the Securities, and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) the
Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s
knowledge, threatened; and
(iii) since
the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The
Company shall have requested and caused (i) Marcum LLP to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, and (ii) Friedman LLP to have furnished
to the Representatives, at the Execution Time, a letter, dated as of the Execution Time, in each case in form and substance satisfactory
to the Representatives.
(h) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company
and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) Prior
to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(j) The
Shares shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions
shall have been provided to the Representatives.
(k) FINRA,
upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the
Underwriters’ participation in same.
(l) Prior
to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit B
hereto (the “Lock-Up Agreement”) from each officer and director of the Company listed on Schedule VI hereto
addressed to the Representatives. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue
stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that
would constitute a breach of or default under the applicable Lock-Up Agreement.
(m) The
Company shall not have received an objection from the Nasdaq Global Market with respect to the listing of additional shares notification
that it filed with the Nasdaq Global Market in connection with the Shares and the Warrant Shares.
If any of the conditions specified
in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile
confirmed in writing.
The documents required to
be delivered by this Section 6 shall be delivered at the office of Goodwin Procter, LLP, counsel for the Underwriters, at 620 Eighth
Avenue, New York, NY 10018, or at such other place as shall be agreed upon by the Representatives and the Company, on the Closing Date.
7. Reimbursement
of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 11
hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter, and
each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any Preliminary Prospectus, or the Prospectus, or any Issuer Free Writing
Prospectus, any roadshow, or any Written Testing-the-Waters Communication or in any amendment thereof or supplement thereto or arise out
of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the following statements set forth in the Preliminary Prospectus and
the Prospectus under the heading “Underwriting”: (i) the third paragraph thereof related to selling concessions and (ii) the
first and second paragraphs under the subheading “Price Stabilization, Short Positions and Penalty Bids” related to stabilization,
syndicate covering transactions and penalty bids, constitute the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, or any Written Testing-the-Waters
Communication.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying party under subsection (a) or (b) above, notify the indemnifying party
of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have
under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights
or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from
any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In the case of parties indemnified
pursuant to Sections 8(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties
indemnified pursuant to Section 8(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to any relevant local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances. 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 (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) 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.
(d) If
at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 8(a) hereof effected
without its written consent if (i) such settlement is entered into more than 60 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) In
the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the
same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the
offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or by the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this Section 8(e) were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(e). Notwithstanding
the provisions of this paragraph (e), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (e).
9. Default
by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions
which the amount of Underwritten Shares set forth opposite their names in Schedule I hereto bears to the aggregate amount
of Underwritten Shares set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives
shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
(c) As
used in this Section 10:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity”
means any of the following:
(1) (i)
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(2) (ii)
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(3) (iii)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“U.S. Special
Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title
II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
11. Termination.
This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) since the respective dates as
of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, any Material Adverse Effect (in
the judgment of the Representatives), whether or not arising in the ordinary course of business, (ii) trading in the Company’s Common
Stock shall have been suspended by the Commission or the Nasdaq Global Market or trading in securities generally on the New York Stock
Exchange or Nasdaq shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State authorities, (iii) there shall have occurred any outbreak
or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect
of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the Preliminary Prospectus or the Prospectus (exclusive of any supplement
thereto), (iv) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or would materially and adversely affect the business or
operations of the Company, or (v) the taking of any action by any governmental body or agency in respect of its monetary or fiscal affairs
which in your opinion has a Material Adverse Effect on the securities markets.
12. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company
or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
13. Notices.
All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed. Such communications must be sent to the respective parties to this Agreement at the following addresses:
If to the Company: |
|
|
|
|
CorMedix Inc. |
|
300 Connell Drive, Suite 4200 |
|
Berkeley Heights, New Jersey 07922 |
|
Attention: Chief Executive Officer |
|
|
With copies to: |
|
|
|
|
Morgan, Lewis & Bockius LLP |
|
101 Park Avenue |
|
New York, New York, 10178 |
|
Attention: Steven A. Navarro |
|
Bryan S. Keighery |
If to the Underwriters: |
|
|
|
|
RBC Capital Markets, LLC |
|
200 Vesey Street, 8th Floor |
|
New York, New York 10281-8098 |
|
Attention: Equity Capital Markets |
|
Fax: (212) 428-6260 |
|
|
|
Truist Securities, Inc. |
|
3333 Peachtree Road NE, 11th Floor |
|
Atlanta, Georgia 30326 |
|
|
With copies to: |
|
|
|
|
Goodwin Procter, LLP |
|
620 Eighth Avenue |
|
New York, New York 10018 |
|
Attention: Benjamin K. Marsh |
14. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors,
employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation
hereunder.
15. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it
may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company, any Subsidiary
or their respective stockholders, creditors, employees or any other party and (c) the Company’s engagement of the Underwriters in
connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether
any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will
not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty
to the Company, in connection with such transaction or the process leading thereto.
16. Integration.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter hereof.
17. Applicable
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement or the transactions contemplated
hereby (including without limitation, any claims sounding in equity, statutory law, contract law or tort law arising out of the subject
matter hereof) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts
of laws doctrine.
18. Waiver
of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
19. Counterparts.
This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement.
20. Headings.
The section headings used herein are for convenience only and shall not affect the construction hereof.
[Signature Page Follows.]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the several Underwriters.
|
Very truly yours, |
|
|
|
CorMedix Inc. |
|
|
|
By: |
/s/
Joseph Todisco |
|
Name: |
Joseph Todisco |
|
Title: |
Chief Executive Officer |
[Signature Page to Underwriting
Agreement]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
RBC Capital Markets, LLC |
|
|
|
By: |
/s/ Rahul Sood |
|
|
Name: Rahul Sood |
|
|
Title: Managing Director |
|
For itself and as Representative of the
other several Underwriters named in
Schedule I to the foregoing Agreement.
[Signature Page to Underwriting
Agreement]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Truist Securities, Inc. |
|
|
|
By: |
/s/ Michael Allwin |
|
|
Name: Michael Allwin |
|
|
Title: Managing Director |
|
For itself and as Representative of the
other several Underwriters named in
Schedule I to the foregoing Agreement.
[Signature Page to Underwriting
Agreement]
Schedule I
Underwriters | |
Number of Underwritten Shares
to be Purchased | | |
Number of Pre-Funded Warrants
to be Purchased | |
RBC Capital Markets, LLC | |
| 3,375,000 | | |
| 1,125,281 | |
Truist Securities, Inc. | |
| 2,625,000 | | |
| 875,219 | |
JMP Securities LLC | |
| 1,500,000 | | |
| 500,125 | |
Total | |
| 7,500,000 | | |
| 2,500,625 | |
[Schedule I to Underwriting
Agreement]
Schedule II
Schedule of Issuer Free Writing Prospectuses included in the Disclosure
Package:
None
[Schedule II to Underwriting
Agreement]
Schedule III
Pricing Terms:
| 1. | The Company is selling 7,500,000 shares of Common Stock. |
| 2. | The Company is selling 2,500,625 Pre-Funded Warrants. |
| 3. | The Company has granted an option to the Underwriters to purchase
up to an additional 1,500,093 shares of Common Stock. |
| 4. | The public offering price per share of Common Stock is $4.00 |
| 5. | The public offering price per Pre-Funded Warrant is $3.999 |
[Schedule III to Underwriting
Agreement]
Schedule IV
Schedule of significant subsidiaries:
None
[Schedule IV to Underwriting
Agreement]
Schedule V
Schedule of Written Testing-the-Waters Communications:
None
[Schedule V to Underwriting
Agreement]
Schedule VI
Schedule of Directors, Officers and Affiliates Subject to Lock-Up:
Paulo Costa
Janet D. Dillione
Greg Duncan
Alan W. Dunton
Myron Kaplan
Steven Lefkowitz
Robert Stewart
Joseph Todisco
Matthew David
Elizabeth Hurlburt
Erin Mistry
Phoebe Mounts
[Schedule
VI to Underwriting Agreement]
EXHIBIT
A – Form of Pre-Funded Warrant
[See
attached.]
[Exhibit A to Underwriting
Agreement]
EXHIBIT B – Form
of Lock-Up Agreement
[See
attached.]
[Exhibit
B to Underwriting Agreement]
ADDENDUM
– Form of Waiver of Lock-Up
[Letterhead
of Representative]
CorMedix
Inc.
Public Offering of Common Stock
,
20__
[Name and Address of
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This
letter is being delivered to you in connection with the offering by CorMedix Inc. (the “Company”) of [ ] shares of common
stock, $[ ] par value per share, of the Company (the “Common Stock”) and [ ] pre-funded warrants to purchase shares of Common
Stock and the lock-up letter dated [ ], 2023 (the “Lock-up Letter”), executed by you in connection with such offering, and
your request for a [waiver] [release] dated [ ], 20[ ], with respect to [ ] shares of Common Stock (the “Shares”).
RBC
Capital Markets, LLC and Truist Securities, Inc. hereby agree to [waive] [release] the transfer restrictions set forth in the Lock-up
Letter, but only with respect to the Shares, effective [ ], 20[ ]; provided, however, that such [waiver] [release] is conditioned
on the Company announcing the impending [waiver] [release] by press release through a major news service at least two business days before
effectiveness of such [waiver] [release]. This letter will serve as notice to the Company of the impending [waiver] [release].
Except
as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force and effect.
|
Yours very truly, |
|
|
|
[Signature of RBC Representative] |
|
|
|
[Name and title of RBC Representative] |
|
|
|
[Signature of Truist Representative] |
|
|
|
[Name and title of Truist
Representative] |
cc: Company
[Addendum
to Underwriting Agreement]
Exhibit 4.1
CORMEDIX INC.
FORM OF PRE-FUNDED WARRANT TO PURCHASE COMMON
STOCK
Warrant No. |
|
Number of Shares: |
|
|
(subject to adjustment) |
|
|
|
|
|
Original Issue Date: |
CorMedix Inc., a Delaware corporation (the “Company”),
hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, __________,
or its permitted assigns (the “Holder”), is entitled to purchase from the Company up to a total of __________ shares
of common stock, $0.001 par value per share (the “Common Stock”), of the Company (each such share, a “Warrant
Share” and all such shares, the “Warrant Shares”) at an exercise price per share equal to $0.001 per share
(as adjusted from time to time as provided in Section 9 herein, the “Exercise Price”), upon surrender of this Warrant
to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”),
and subject to the following terms and conditions:
1. Definitions. For purposes of this Warrant, the following
terms shall have the following meanings:
(a) “Affiliate” means any Person that, directly
or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms
are used in and construed under Rule 405 under the Securities Act.
(b) “Attribution Parties” means, collectively, the
following Persons and entities: (i) any direct or indirect Affiliates of the Holder, (ii) any Person acting or who could be deemed to
be acting as a Group together with the Holder or any Attribution Parties and (iii) any other Persons whose beneficial ownership of the
Company’s Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section
13(d) or Section 16 of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other
Attribution Parties to the Maximum Percentage (each as defined below).
(c) “Closing Sale Price” means, for any security
as of any date, the last trade price for such security on the Principal Trading Market for such security, as reported by Bloomberg Financial
Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does not designate the last trade price,
then the last trade price of such security prior to 4:00 P.M., New York City time, as reported by Bloomberg Financial Markets, or if the
foregoing do not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such
security as reported by Bloomberg Financial Markets, or, if no last trade price is reported for such security by Bloomberg Financial Markets,
the average of the bid and ask prices, of any market makers for such security as reported in the OTC Link or “pink sheets”
by OTC Markets Group Inc. (formerly OTC Markets Inc.) as of 4:00 P.M., New York City time on such date. If the Closing Sale Price cannot
be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date
shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree
upon the fair market value of such security, then the Board of Directors of the Company shall use its good faith judgment to determine
the fair market value. The determination of the Board of Directors of the Company shall be binding upon all parties absent demonstrable
error. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.
(d) “Exchange Act” means the Securities Exchange
Act of 1934, as amended.
(e) “Person” means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or
any department or agency thereof.
(f) “Principal Trading Market” means the national
securities exchange or other trading market on which the Common Stock is primarily listed on and quoted for trading, which, as of the
Original Issue Date shall be the Nasdaq Global Market.
(g) “Registration Statement” means the Company’s
Registration Statement on Form S-3 (File No. 333-258756), declared effective on August 20, 2021.
(h) “SEC” means the United States Securities and
Exchange Commission.
(i) “Securities Act” means the Securities Act of
1933, as amended.
(j) “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, for the Company’s primary trading market or quotation system with respect
to the Common Stock that is in effect on the date of delivery of an applicable Exercise Notice (as defined below), which as of the Original
Issue Date was “T+2”.
(k) “Trading Day” means any weekday on which the
Principal Trading Market is normally open for trading.
(l) “Transfer Agent” means VStock Transfer, LLC,
the Company’s transfer agent and registrar for the Common Stock, and any successor appointed in such capacity.
(m) “Warrant Agent” means the Company.
2. Registration of Warrants. This Warrant, as initially issued
by the Company, is offered and sold pursuant to the Registration Statement. As of the Original Issue Date, the Warrant Shares are issuable
under the Registration Statement. Accordingly, the Warrant and, assuming issuance pursuant to the Registration Statement or an exchange
meeting the requirements of Section 3(a)(9) of the Securities Act as in effect on the Original Issue Date, the Warrant Shares are not
“restricted securities” under Rule 144 promulgated under the Securities Act. The Company shall register ownership of this
Warrant upon records to be maintained by the Warrant Agent for that purpose (the “Warrant Register”), in the name of
the record Holder (which shall include the initial Holder or, as the case may be, any assignee to which this Warrant is permissibly assigned
hereunder) from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the
purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. Subject to compliance with all
applicable securities laws, the Company shall, or will cause the Warrant Agent to, register the transfer of all or any portion of this
Warrant in the Warrant Register, upon surrender of this Warrant, together with a written assignment of this Warrant substantially in the
form attached hereto as Schedule 2 duly executed by the Holder, and payment for all applicable transfer taxes accompanied by reasonable
evidence of authority of the party making such request that may be required by the Warrant Agent. Upon any such registration or transfer,
a new warrant to purchase Common Stock in substantially the form of this Warrant (any such new warrant, a “New Warrant”)
evidencing the portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant evidencing the remaining portion
of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee
thereof shall be deemed the acceptance by such transferee of all of the rights and obligations in respect of the New Warrant that the
Holder has in respect of this Warrant. The Company shall, or will cause the Warrant Agent to, prepare, issue and deliver at the Company’s
own expense any New Warrant under this Section 3. Until due presentment for registration of transfer, the Company may treat the registered
Holder hereof as the owner and holder for all purposes, and the Company shall not be affected by any notice to the contrary.
4. Exercise of Warrants.
(a) All or any part of this Warrant shall be exercisable by the registered
Holder in any manner permitted by Section 10 of this Warrant at any time and from time to time on or after the Original Issue Date.
(b) The Holder may exercise this Warrant by delivering to the Company
(i) an exercise notice, in the form attached as Schedule 1 hereto (the “Exercise Notice”), completed and duly signed,
and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised (which may take the
form of a “cashless exercise” if so indicated in the Exercise Notice pursuant to Section 10 below), and the date on which
the last of such items is delivered to the Company (as determined in accordance with the notice provisions hereof) is an “Exercise
Date.” The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Exercise Notice be required and delivery of the
Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a New Warrant evidencing the right
to purchase the remaining number of Warrant Shares, if any.
5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall, or shall cause
the Transfer Agent to, promptly (but in no event later than the number of Trading Days comprising the Standard Settlement Period) credit
such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its
designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit/Withdrawal At Custodian
system provided that the Transfer Agent is then a participant in the DTC Fast Automated Securities Transfer (“FAST”)_
Program and either (A) there is an effective registration statement permitting the issuance of such Warrant Shares to or resale of such
Warrant Shares by the Holder or (B) such Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 promulgated under the Securities Act (assuming cashless exercise of this Warrant), and otherwise issue such Warrant
Shares in the name of the Holder or its designee in restricted book-entry form in the Company’s share register. The Company agrees
to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. The
Holder, or any Person permissibly so designated by the Holder to receive Warrant Shares, shall be deemed to have become the holder of
record of such Warrant Shares as of the Exercise Date, irrespective of the date such Warrant Shares are credited to the Holder’s
or its designee’s DTC account or the date of the book entry positions evidencing such Warrant Shares, as the case may be.
(b) If within the Standard Settlement Period after the Exercise Date,
the Company fails to deliver to the Holder or its designee the required number of Warrant Shares in the manner required pursuant to Section
5(a) or fails to credit the Holder’s or its designee’s balance account with DTC for such number of Warrant Shares to which
the Holder is entitled (other than a failure caused by incorrect or incomplete information provided by the Holder to the Company), and
if after such number of Trading Days comprising the Standard Settlement Period and prior to the receipt of such Warrant Shares, the Holder
purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the
Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall, within
two (2) Trading Days after the Holder’s request and in the Holder’s sole discretion, either (1) pay in cash to the Holder
an amount equal to the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so
purchased, at which point the Company’s obligation to issue such Warrant Shares shall terminate or (2) promptly honor its obligation
to deliver to the Holder or its designee such Warrant Shares or credit the Holder’s or its designee’s balance account with
DTC for such Warrant Shares and pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased in the Buy-In, less the product of (A) the number of shares of
Common Stock purchased in the Buy-In, and (B) the Closing Sale Price of a share of Common Stock on the Exercise Date.
(c) To the extent permitted by law and subject to Section 5(b), the
Company’s obligations to issue and deliver Warrant Shares in accordance with and subject to the terms hereof (including the limitations
set forth in Section 11 below) are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same,
any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the
same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person
of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any
other circumstance that might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant
Shares. Subject to Section 5(b), nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery of shares
of Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or transfer tax, transfer agent
fee or other incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance of such shares, all of which
taxes and expenses shall be paid by the Company; provided, however, that the Company shall not be required to pay any tax that may be
payable in respect of any transfer involved in the registration of any Warrant Shares or the Warrants in a name other than that of the
Holder or an Affiliate thereof. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring
this Warrant or receiving Warrant Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof, or in
lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction (in such case) and, in each case, a customary and reasonable indemnity, if requested by the Company, but
without any requirement that a surety bond be procured, provided or posted unless requested by a third-party transfer agent. Applicants
for a New Warrant under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other
reasonable third-party costs as the Company may prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant,
then the Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the Company’s obligation to issue
the New Warrant.
8. Reservation of Warrant Shares. The Company covenants that
it will, at all times while this Warrant is outstanding, reserve and keep available out of the aggregate of its authorized but unissued
and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as
herein provided, the number of Warrant Shares that are issuable and deliverable upon the exercise of this entire Warrant, free from preemptive
rights or any other contingent purchase rights of persons other than the Holder (taking into account the adjustments and restrictions
of Section 9). The failure of the Company to reserve and keep available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock a sufficient number of shares of Common Stock to enable it to issue Warrant Shares upon exercise of this Warrant
as herein provided is referred to herein as an “Authorized Share Failure.” The Company covenants that all Warrant Shares
so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof,
be duly and validly authorized, issued and fully paid and non-assessable. The Company will take all actions as may be necessary to assure
that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of any securities exchange or automated quotation system upon which the Common Stock may be listed. The Company further covenants that
it will not, without the prior written consent of the Holder, take any actions to increase the par value of the Common Stock at any time
while this Warrant is outstanding. In furtherance of the Company’s obligations set forth in this Section 8, as soon as practicable
after the date of the occurrence of an Authorized Share Failure, but in no event later than ninety (90) days after the occurrence of such
Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of authorized
shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use
its reasonable best efforts to solicit its stockholders’ approval of such increase in authorized shares of Common Stock and to cause
its board of directors to recommend to the stockholders that they approve such proposal.
9. Certain Adjustments. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 9.
(a) Stock Dividends and Splits. If the Company, at any time
while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class of capital
stock issued and outstanding on the Original Issue Date and in accordance with the terms of such stock on the Original Issue Date or as
amended, that is payable in shares of Common Stock, (ii) subdivides its outstanding shares of Common Stock into a larger number of shares
of Common Stock, (iii) combines its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (iv) issues
by reclassification of shares of capital stock any additional shares of Common Stock of the Company, then in each such case the Exercise
Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately
before such event and the denominator of which shall be the number of shares of Common Stock outstanding immediately after such event.
Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution, provided, however, that if such record date shall have been fixed and
such dividend is not fully paid on the date fixed therefor, the Exercise Price shall be recomputed accordingly as of the close of business
on such record date and thereafter the Exercise Price shall be adjusted pursuant to this paragraph as of the time of actual payment of
such dividends. Any adjustment pursuant to clause (ii), (iii) or (iv) of this paragraph shall become effective immediately after the effective
date of such subdivision, combination or reclassification.
(b) Pro Rata Distributions. If, on or after the Original Issue
Date, the Company shall declare or make any dividend or other pro rata distribution of its assets (or rights to acquire its assets) to
holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash,
stock or other securities, property, options, evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction, but, for the avoidance of doubt, excluding any distribution
of shares of Common Stock subject to Section 9(a), any distribution of Purchase Rights (as defined below) subject to Section 9(c) and
any Fundamental Transaction (as defined below) subject to Section 9(d)) (a “Distribution”) then, in each such case,
the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if
the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations
or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage immediately before the date on which
a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock
are to be determined for the participation in such Distribution (provided, that to the extent that the Holder’s right to participate
in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder
shall not be entitled to participate in such Distribution to such extent (and shall not be entitled to beneficial ownership of such shares
of Common Stock as a result of such Distribution (and beneficial ownership) to such extent) and the portion of such Distribution shall
be held in abeyance for the benefit of the Holder until such time or times as (all or portion) its right thereto would not result in the
Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted (all or
portion of) such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution held
similarly in abeyance) to the same extent as if there had been no such limitation).
(c) Purchase Rights. If at any time on or after the Original
Issue Date, the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities
or other property, in each case pro rata to the record holders of any class of Common Stock (the “Purchase Rights”),
then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the
Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant
(without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage)
immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record
is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issuance or sale of such Purchase
Rights (provided, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder
and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase
Right to such extent (and shall not be entitled to beneficial ownership of such Common Stock as a result of such Purchase Right (and beneficial
ownership) to such extent) and such Purchase Right to such extent shall be held in abeyance for the benefit of the Holder until such time
or times as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which
time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or
on any subsequent Purchase Right to be held similarly in abeyance) to the same extent as if there had been no such limitation). As used
in this Section 9(c), (i) “Options” means any rights, warrants or options to subscribe for or purchase shares of Common
Stock or Convertible Securities and (ii) “Convertible Securities” mean any stock or securities (other than Options)
directly or indirectly convertible into or exercisable or exchangeable for shares of Common Stock.
(d) Fundamental Transactions. If, at any time while this Warrant
is outstanding (i) the Company effects any merger or consolidation of the Company with or into another Person, in which the Company is
not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or
indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company
effects any sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) pursuant
to any tender offer or exchange offer (whether by the Company or another Person), holders of capital stock who tender shares representing
more than 50% of the voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such
tender for payment, (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than
the 50% of the voting power of the capital stock of the Company (except for any such transaction in which the stockholders of the Company
immediately prior to such transaction maintain, in substantially the same proportions, the voting power of such Person immediately after
the transaction) or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which
the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision,
combination or reclassification of shares of Common Stock covered by Section 9(a) above) (in any such case, a “Fundamental Transaction”),
then following such Fundamental Transaction the Holder shall have the right to receive, upon exercise of this Warrant, the same amount
and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction
if it had been, immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise
in full of this Warrant without regard to any limitations on exercise contained herein (the “Alternate Consideration”).
The Company shall not effect any Fundamental Transaction in which the Company is not the surviving entity or the Alternate Consideration
includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous
“cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to or simultaneously with the consummation
thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the Company) shall assume
the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be
entitled to receive, and the other obligations under this Warrant. The provisions of this paragraph (d) shall similarly apply to subsequent
transactions analogous of a Fundamental Transaction type.
(e) Number of Warrant Shares. Simultaneously with any adjustment
to the Exercise Price pursuant to paragraph (a) of this Section 9, the number of Warrant Shares that may be purchased upon exercise of
this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder
for the increased or decreased number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior
to such adjustment.
(f) Calculations. All calculations under this Section 9 shall
be made to the nearest one tenth of one cent or the nearest share, as applicable.
(g) Notice of Adjustments. Upon the occurrence of each adjustment
pursuant to this Section 9, the Company at its expense will, at the written request of the Holder, promptly compute such adjustment, in
good faith, in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement
of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant
(as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment
is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company’s
transfer agent.
(h) Notice of Corporate Events. If, while this Warrant is outstanding,
the Company (i) declares a dividend or any other pro rata distribution of cash, securities or other property in respect of its Common
Stock, including, without limitation, any granting of rights or warrants to subscribe for or purchase any capital stock of the Company
or any subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall
deliver to the Holder a notice of such transaction at least fifteen (15) days prior to the applicable record or effective date on which
a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction; provided, however, that
the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described
in such notice. In addition, if while this Warrant is outstanding, the Company authorizes or approves, enters into any agreement contemplating
or solicits stockholder approval for any Fundamental Transaction contemplated by Section 9(d), other than a Fundamental Transaction under
clause (iii) of Section 9(d), the Company shall deliver to the Holder a notice of such Fundamental Transaction at least thirty (30) days
prior to the date such Fundamental Transaction is consummated.
10. Payment of Exercise Price. Notwithstanding anything contained
herein to the contrary, the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price through a “cashless
exercise,” in which event the Company shall issue to the Holder the number of Warrant Shares in an exchange of securities effected
pursuant to Section 3(a)(9) of the Securities Act, determined as follows:
X = Y [(A-B)/A]
where:
“X” equals the number of Warrant Shares to be issued to
the Holder;
“Y” equals the total number of Warrant Shares with respect
to which this Warrant is then being exercised;
“A” equals the Closing Sale Price of the shares of Common
Stock (as reported by Bloomberg Financial Markets) as of the Trading Day on the date immediately preceding the Exercise Date; and
“B” equals the Exercise Price then in effect for the applicable
Warrant Shares at the time of such exercise.
For purposes of Rule 144 promulgated under the Securities Act, it is
intended, understood and acknowledged that the Warrant Shares issued in a “cashless exercise” transaction shall be deemed
to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this
Warrant was originally issued (provided that the SEC continues to take the position that such treatment is proper at the time of such
exercise).
In the event that a registration statement registering the issuance
of the Warrant Shares is, for any reason, not effective at the time of exercise of this Warrant, then the Warrant may only be exercised
through a cashless exercise, as set forth in this Section 10. If Warrant Shares are issued in such a cashless exercise, the Company acknowledges
and agrees that, in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics of the
Warrants being exercised, and the holding period of the Warrants being exercised may be tacked on to the holding period of the Warrant
Shares (provided that the SEC continues to take the position that such treatment is proper at the time of such exercise).
11. Limitations on Exercise.
(a) Notwithstanding anything to the contrary contained herein, the
Company shall not effect the exercise of any portion of this Warrant, and the Holder shall not have the right to exercise any portion
of this Warrant, pursuant to the terms and conditions of this Warrant and any such exercise shall be null and void and treated as if never
made, to the extent that immediately prior to or after giving effect to such exercise, the Holder, together with the other Attribution
Parties, collectively would beneficially own in excess of 4.99 % (the “Maximum Percentage”) of the number of shares
of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number
of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common
Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of this Warrant
with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would
be issuable upon (A) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Holder or any of the other
Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including,
without limitation, any convertible notes or convertible preferred stock or warrants, including any other Warrants) beneficially owned
by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in
this Section 11(a). For purposes of this Section 11(a), beneficial ownership shall be calculated in accordance with Section 13(d) of the
Exchange Act, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.
To the extent that the limitation contained in this Section 11(a) applies, the determination of whether this Warrant is exercisable (in
relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant
is exercisable shall be in the sole discretion of the Holder, and the Company shall have no obligation to verify or confirm the accuracy
of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Warrant, in determining the
number of outstanding shares of Common Stock the Holder may acquire upon the exercise of this Warrant without exceeding the Maximum Percentage,
the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report
on Form 10-K, Quarterly Report on Form 10-Q and Current Reports on Form 8-K or other public filing with the SEC, as the case may be, (y)
a more recent public announcement by the Company or (z) any other written notice by the Company setting forth the number of shares of
Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from
the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number,
the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such
Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 11(a), to exceed
the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise
Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably
practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at
any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing
or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares
of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant,
by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event
that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder and the other Attribution Parties
being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock
(as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s and the other Attribution
Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed
null and void and shall be cancelled ab initio and the portion of this Warrant so exercised shall be reinstated, and the Holder
shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess
Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares.
Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any
other percentage not in excess of 4.99% of the issued and outstanding shares of Common Stock immediately after giving effect to the issuance
of the shares of Common Stock issuable upon exercise of this Warrant as specified in such notice; provided that (i) any such increase
in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company, (ii) any
such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Warrants that
is not an Attribution Party of the Holder, and (iii) no such decrease shall affect the validity of any prior exercise of Warrants by Holder
or any Attribution Party. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess
of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section
13(d) of the Exchange Act or Rule 16a-1(a)(1) promulgated under the Exchange Act. No prior inability to exercise this Warrant pursuant
to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination
of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 11(a) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective
or inconsistent with the intended beneficial ownership limitation contained in this Section 11(a) or to make changes or supplements necessary
or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply
to a successor holder of this Warrant.
(b) This Section 11 shall not restrict the number of shares of Common
Stock which the Holder may receive or beneficially own in order to determine the amount of securities or other consideration that the
Holder may receive in the event of a Fundamental Transaction as contemplated in Section 9(d) of this Warrant.
12. No Fractional Shares. No fractional Warrant Shares will
be issued in connection with any exercise of this Warrant. In lieu of any fractional shares that would otherwise be issuable, the number
of Warrant Shares to be issued shall be rounded down to the next whole number and the Company shall pay the Holder in cash the fair market
value (based on the Closing Sale Price) for any such fractional shares.
13. Notices. Whenever notice is required to be given under this
Warrant, including, without limitation, an Exercise Notice, unless otherwise provided herein, such notice shall be given effective on
the earliest of: (a) the time of transmission, if such notice or communication is delivered via email attachment at the email address
as set forth below at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via email attachment at the email address as set forth below attached hereto on a day that
is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice
is required to be given, and will be delivered and addressed as follows:
(i) If to the Company, to:
CorMedix Inc.
300 Connell Drive, Suite 4200
Berkeley Heights, New Jersey 07922
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York, 10178
Attention: Steven A. Navarro
Bryan S. Keighery
(ii) if to the Holder, at such address or other contact information
delivered by the Holder to Company or as is on the books and records of the Company.
14. Warrant Agent. The Warrant Agent shall initially serve as
warrant agent under this Warrant. Upon thirty (30) days’ notice to the Holder, the Company may appoint a new warrant agent. Any
corporation into which the Warrant Agent or any new warrant agent may be merged or any corporation resulting from any consolidation to
which the Warrant Agent or any new warrant agent shall be a party or any corporation to which the Warrant Agent or any new warrant agent
transfers substantially all of its corporate trust or shareholders services business shall be a successor warrant agent under this Warrant
without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed
(by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.
15. Miscellaneous.
(a) No Rights as a Stockholder. Except as otherwise set forth
in this Warrant, the Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive
dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed
to confer upon the Holder, solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of
the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification
of stock, consolidation, merger, amalgamation, conveyance or otherwise), receive notice of meetings, receive dividends or subscription
rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Holder is then entitled to receive upon the
due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder
to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are
asserted by the Company or by creditors of the Company.
(b) Authorized Shares.
(i) Except and to the extent as waived or consented to by the Holder,
the Company shall not by any action, including, without limitation, amending its certificate or articles of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder
as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (a) not increase the
par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value,
(b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to obtain all such authorizations, exemptions
or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations
under this Warrant.
(ii) Before taking any action which would result in an adjustment in
the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations
or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
(c) Successors and Assigns. Subject to compliance with applicable
securities laws, this Warrant may be transferred or assigned by the Holder. This Warrant may not be assigned by the Company without the
written consent of the Holder except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure
to the benefit of the Company and the Holder and their respective successors and assigns. Subject to the preceding sentence, nothing in
this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause
of action under this Warrant.
(d) Restrictions. The Holder acknowledges that the Warrant Shares
acquired upon the exercise of this Warrant, if not registered and if the Holder does not utilize cashless exercise after expiration of
the Rule 144 holding period, will contain a legend to the effect that the Warrant Shares are not registered.
(e) Amendment and Waiver. This Warrant may be amended only in
writing signed by the Company and the Holder, or their successors and assigns. Except as otherwise provided herein, the provisions of
the Warrants may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed
by it, only if the Company has obtained the written consent of the Holder.
(f) Acceptance. Receipt of this Warrant by the Holder shall
constitute acceptance of and agreement to all of the terms and conditions contained herein.
(g) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY AND THE HOLDER
HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE STATE OF NEW YORK FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT
TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), 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. EACH OF THE COMPANY AND THE HOLDER HEREBY
IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING
A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PERSON AT THE ADDRESS IN EFFECT
FOR NOTICES TO IT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED
HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH OF THE COMPANY AND THE HOLDER
HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
(h) Headings. The headings herein are for convenience only,
do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
(i) Severability. In case any one or more of the provisions
of this Warrant is held by a court of competent jurisdiction to be shall be invalid, illegal, void or unenforceable in any respect, the
validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby,
and the Company and the Holder will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant. It is hereby stipulated
and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed as of the Original Issue Date set out above.
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CORMEDIX INC. |
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SCHEDULE 1
FORM OF EXERCISE NOTICE
[To be executed by the Holder to purchase shares
of Common Stock under the Warrant]
CORMEDIX INC.
Ladies and Gentlemen:
(1) The undersigned is the Holder of Warrant No. [ ] (the “Warrant”)
issued by CorMedix Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined
herein have the respective meanings set forth in the Warrant.
(2) The undersigned hereby exercises its right to purchase Warrant
Shares pursuant to the Warrant.
(3) The Holder intends that payment of the Exercise Price shall be
made as (check one):
☐
Cash Exercise
☐
“Cashless Exercise” under Section 10 of the Warrant
(4) If the Holder has elected a Cash Exercise, the Holder shall pay
the sum of $__________ in immediately available funds to the Company in accordance with the terms of the Warrant.
(5) Pursuant to this Exercise Notice, the Company shall deliver to
the Holder Warrant Shares determined in accordance with the terms of the Warrant.
(6) By its delivery of this Exercise Notice, the undersigned represents
and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder, together with the other Attribution Parties,
will not beneficially own in excess of the Maximum Percentage.
Dated:
Name of Holder:
(Signature must conform in all respects to name
of Holder as specified on the face of the Warrant)
ACKNOWLEDGMENT
The Company hereby acknowledges this Exercise Notice and hereby directs
the Transfer Agent to issue the above indicated number of shares of Common Stock within the Standard Settlement Period.
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Schedule 2
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
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Exhibit 5.1
June 30, 2023
CorMedix Inc.
300 Connell Drive, Suite 4200
Berkeley Heights, NJ 07922
Re: CorMedix Inc. Registration Statement on Form S-3 (File No.
333-258756)
Ladies and Gentlemen:
We have acted as counsel to CorMedix Inc., a Delaware
corporation (the “Company”), in connection with the offering by the Company of up to 9,000,093 shares (the “Shares”)
of the Company’s common stock, par value $0.001 per share (“Common Stock”) and pre-funded warrants (the “Pre-Funded
Warrants”) to purchase up to 2,500,625 shares of Common Stock (such shares issuable upon exercise of the Pre-Funded Warrants,
the “Pre-Funded Warrant Shares”), pursuant to the Registration Statement on Form S-3 (File No. 333-258756), filed with
the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities
Act”) on August 12, 2021, which was declared effective by the SEC on August 20, 2021 (the “Registration Statement”),
the related base prospectus, dated August 20, 2021 (the “Base Prospectus”), and the preliminary prospectus supplement,
dated June 28, 2023 (the “Preliminary Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”),
filed with the SEC pursuant to Rule 424(b)(5) under the Securities Act, and an underwriting agreement, dated June 28, 2023, by and among
Company and RBC Capital Markets, LLC and Truist Securities, Inc., as representatives of the several underwriters named in Schedule I thereto
(the “Underwriting Agreement”).
In connection with this opinion letter, we have examined
the Registration Statement, the Prospectus, the Underwriting Agreement, the Pre-Funded Warrants and originals, or copies certified or
otherwise identified to our satisfaction, of the Amended and Restated Certificate of Incorporation of the Company, as amended (the “Restated
Certificate”), and the Second Amended and Restated By-Laws of the Company, and such other documents, records and other instruments
as we have deemed appropriate for purposes of the opinion set forth herein.
We have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals
of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals of all documents
submitted to us as copies.
The enforcement of any obligations of the Company
may be limited by bankruptcy, insolvency, reorganization, moratorium, marshaling or other laws and rules of law affecting the enforcement
generally of creditors’ rights and remedies, including, without limitation, fraudulent conveyance and fraudulent transfer laws.
Our opinions are subject to the effects of general
principles of equity (whether considered in a proceeding at law or in equity), including but not limited to principles limiting the availability
of specific performance or injunctive relief, and concepts of materiality and reasonableness, and the implied duty of good faith and fair
dealing.
With respect to the Pre-Funded Warrants, we have assumed
that, as of each and every time any of the Pre-Funded Warrants are exercised, the Company will have a sufficient number of authorized
and unissued shares of the Common Stock available for issuance under its Restated Certificate to permit full exercise of each of the Pre-Funded
Warrants in accordance with their terms without the breach or violation of any other agreement, commitment or obligation of the Company.
Based upon the foregoing, we are of the opinion that
(i) the Shares have been duly authorized by the Company and, when issued and sold by the Company and delivered by the Company against
receipt of the purchase price therefor, in the manner contemplated by the Underwriting Agreement, will be validly issued, fully paid and
non-assessable; (ii) when the Pre-Funded Warrants are issued, sold and delivered in the manner and for the consideration stated in the
Registration Statement and the Prospectus, such Pre-Funded Warrants will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and (iii)
the Pre-Funded Warrant Shares, when issued and delivered by the Company upon exercise of the Pre-Funded Warrants in accordance with the
terms thereof, will be validly issued, fully paid and non-assessable.
The opinions expressed herein are limited to Delaware
General Corporation Law. We express no opinion as to the effect of events occurring, circumstances arising, or changes of law becoming
effective or occurring, after the date hereof on the matters addressed in this opinion.
We hereby consent to the use of this opinion as Exhibit
5.1 to the Registration Statement and to the reference to us under the caption “Legal matters” in the prospectus included
in the Registration Statement. In giving such consent, we do not hereby admit that we are acting within the category of persons whose
consent is required under Section 7 of the Act or the rules or regulations of the SEC thereunder.
Very truly yours,
/s/ MORGAN, LEWIS & BOCKIUS LLP
Exhibit 99.1
CORMEDIX INC. ANNOUNCES PROPOSED PUBLIC OFFERING
OF COMMON STOCK AND PRE-FUNDED WARRANTS
Berkeley Heights, NJ – June 28, 2023
– CorMedix Inc. (Nasdaq: CRMD), a biopharmaceutical company focused on developing and commercializing therapeutic products
for the prevention and treatment of life-threatening diseases and conditions, today announced that it intends to offer and sell shares
of its common stock, and in lieu of common stock to certain investors that so chose, pre-funded warrants to purchase shares of its common
stock, in an underwritten public offering. All of the shares and pre-funded warrants to be sold in the offering will be offered by CorMedix.
In addition, CorMedix intends to grant the underwriters a 30-day option to purchase up to an additional 15% of shares of its common stock
offered in the public offering (including shares underlying the pre-funded warrants), at the public offering price, less underwriting
discounts and commissions. The offering is subject to market conditions, and there can be no assurance as to whether or when the offering
may be completed, or as to the actual size or terms of the offering.
RBC Capital Markets, Truist Securities and JMP
Securities, a Citizens Company, are acting as book-running managers for the offering.
CorMedix intends to use the net proceeds from
the proposed public offering for general corporate purposes, commercialization efforts, research and development, and working capital
and general expenditures.
The securities described above are being offered
by CorMedix pursuant to a shelf registration statement on Form S-3 (File No. 333-258756) which was initially filed by CorMedix with the
Securities and Exchange Commission (the “SEC”) on August 12, 2021, and was declared effective by the SEC on August 20, 2021.
The securities will be offered only by means of
a prospectus supplement and accompanying prospectus relating to the offering that form a part of the registration statement. A preliminary
prospectus supplement and the accompanying prospectus relating to and describing the terms of the offering will be filed with the SEC
and will be available on the SEC’s website at http://www.sec.gov. Copies of the preliminary prospectus supplement and accompanying
base prospectus relating to the offering, as well as copies of the final prospectus supplement, when available, may be obtained from RBC
Capital Markets, LLC, Attention: Equity Capital Markets, 200 Vesey Street, 8th Floor, New York, NY 10281, by telephone at (877) 822-4089,
or by email at equityprospectus@rbccm.com; Truist Securities, Inc., Attention: Prospectus Department, 3333 Peachtree Road NE, 9th floor,
Atlanta, Georgia 30326, by telephone at (800) 685-4786, or by email at TruistSecurities.prospectus@Truist.com; or JMP Securities LLC,
Attention: Prospectus Department, 600 Montgomery Street, Suite 1100, San Francisco, California 94111, by telephone at (415) 835-8985,
or by e-mail at syndicate@jmpsecurities.com.
This press release shall not constitute an
offer to sell or the solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About CorMedix Inc.
CorMedix Inc. is a biopharmaceutical company focused
on developing and commercializing therapeutic products for the prevention and treatment of life-threatening conditions and diseases. The
Company is focused on developing its lead product DefenCath™, a novel, non-antibiotic antimicrobial and antifungal solution designed
to prevent costly and life-threatening bloodstream infections associated with the use of central venous catheters in patients undergoing
chronic hemodialysis. DefenCath has been designated by FDA as Fast Track and as a Qualified Infectious Disease Product (QIDP), and the
original New Drug Application (NDA) received priority review in recognition of its potential to address an unmet medical need. QIDP provides
for an additional five years of marketing exclusivity, which will be added to the five years granted to a New Chemical Entity upon approval
of the NDA. CorMedix also committed to conducting a clinical study in pediatric patients using a central venous catheter for hemodialysis
when the NDA is approved, which will add an additional six months of marketing exclusivity when the study is completed. CorMedix received
a second Complete Response Letter from the FDA last August related to deficiencies at both its primary contract manufacturer and its supplier
of heparin API. After receiving guidance from FDA at a Type A meeting in April of 2023, the NDA for DefenCath was resubmitted. In June
of 2023, the NDA was accepted for filing by the FDA. CorMedix also intends to develop DefenCath as a catheter lock solution for use in
other patient populations, and the company is working with top-tier researchers to develop taurolidine-based therapies for rare pediatric
cancers. For more information visit: www.cormedix.com.
Forward-Looking Statements
This press release contains “forward-looking
statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that are subject to risks and uncertainties. All statements,
other than statements of historical facts, regarding management’s expectations, beliefs, goals, plans or CorMedix’s prospects,
including, but not limited to, statements regarding the offer and sale of common stock, the terms of the offering, the expected use of
proceeds, CorMedix’s future financial position, financing plans, future revenues, projected costs and the sufficiency of our cash
and short-term investment to fund our operations are forward-looking statements reflecting the current beliefs and expectations of management
should be considered forward-looking. Readers are cautioned that actual results may differ materially from projections or estimates due
to a variety of important factors, including: the risks and uncertainties related to market conditions; satisfaction of customary closing
conditions related to the offering; and as risks and uncertainties set forth in CorMedix’s Annual Report on Form 10-K for the year
ended December 31, 2022, and the preliminary prospectus supplement related to the proposed public offering and subsequent filings with
the SEC. These and other risks are described in greater detail in CorMedix’s filings with the SEC, copies of which are available
free of charge at the SEC’s website at www.sec.gov or upon request from CorMedix. CorMedix may not actually achieve the goals or
plans described in its forward-looking statements, and investors should not place undue reliance on these statements. CorMedix assumes
no obligation and does not intend to update these forward-looking statements, except as required by law.
Investor Contact:
Dan Ferry
Managing Director
LifeSci Advisors
(617) 430-7576
Exhibit
99.2
CORMEDIX
INC. ANNOUNCES PRICING OF $40 MILLION PUBLIC OFFERING OF COMMON STOCK AND PRE-FUNDED WARRANTS
Berkeley
Heights, NJ – June 28, 2023 – CorMedix Inc. (Nasdaq: CRMD), a biopharmaceutical company focused on developing and
commercializing therapeutic products for the prevention and treatment of life-threatening diseases and conditions, today announced the
pricing of its previously announced underwritten public offering of 7,500,000 shares of its common stock at a public offering price of
$4.00 per share and, in lieu of common stock to certain investors, pre-funded warrants to purchase up to an aggregate of 2,500,625 shares
of its common stock at a price of $3.999 per pre-funded warrant, which represents the per share public offering price for the common
stock less the $0.001 per share exercise price for each such pre-funded warrant. The total gross proceeds from the offering to the Company
are expected to be approximately $40 million, before deducting the underwriting discounts and commissions and other offering expenses.
In addition, CorMedix granted the underwriters a 30-day option to purchase up to an additional 1,500,093 shares of its common stock at
the public offering price of $4.00 per share, less underwriting discounts and commissions. The closing of the offering is expected to
occur on or about July 3, 2023, subject to the satisfaction of customary closing conditions.
RBC
Capital Markets, Truist Securities and JMP Securities, a Citizens Company, are acting as book-running managers for the offering.
CorMedix
intends to use the net proceeds from the public offering for general corporate purposes, commercialization efforts, research and development,
and working capital and general expenditures.
The
securities described above are being offered by CorMedix pursuant to a shelf registration statement on Form S-3 (File No. 333-258756),
which was initially filed by CorMedix with the Securities and Exchange Commission (the “SEC”) on August 12, 2021, and was
declared effective by the SEC on August 20, 2021.
A
preliminary prospectus supplement relating to the offering was filed with the SEC on June 28, 2023 and is available on the SEC’s
website at http://www.sec.gov. The final prospectus supplement relating to and describing the terms of the offering will be filed
with the SEC and will be available on the SEC’s website. Before investing in the offering, you should read each of the prospectus
supplement and the accompanying prospectus relating to the offering in their entirety as well as the other documents that the Company
has filed with the SEC that are incorporated by reference in the prospectus supplement and the accompanying prospectus relating to the
offering, which provide more information about the Company and the offering. Copies of the preliminary prospectus supplement and accompanying
base prospectus relating to the offering, as well as copies of the final prospectus supplement, when available, may be obtained from
RBC Capital Markets, LLC, Attention: Equity Capital Markets, 200 Vesey Street, 8th Floor, New York, NY 10281, by telephone at (877) 822-4089,
or by email at equityprospectus@rbccm.com; Truist Securities, Inc., Attention: Prospectus Department, 3333 Peachtree Road NE, 9th floor,
Atlanta, Georgia 30326, by telephone at (800) 685-4786, or by email at TruistSecurities.prospectus@Truist.com; or JMP Securities LLC,
Attention: Prospectus Department, 600 Montgomery Street, Suite 1100, San Francisco, California 94111, by telephone at (415) 835-8985,
or by e-mail at syndicate@jmpsecurities.com.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy any of the securities described herein, nor
shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such state or jurisdiction.
About
CorMedix Inc.
CorMedix
Inc. is a biopharmaceutical company focused on developing and commercializing therapeutic products for the prevention and treatment of
life-threatening conditions and diseases. The Company is focused on developing its lead product DefenCath™, a novel, non-antibiotic
antimicrobial and antifungal solution designed to prevent costly and life-threatening bloodstream infections associated with the use
of central venous catheters in patients undergoing chronic hemodialysis. DefenCath has been designated by FDA as Fast Track and as a
Qualified Infectious Disease Product (QIDP), and the original New Drug Application (NDA) received priority review in recognition of its
potential to address an unmet medical need. QIDP provides for an additional five years of marketing exclusivity, which will be added
to the five years granted to a New Chemical Entity upon approval of the NDA. CorMedix also committed to conducting a clinical study in
pediatric patients using a central venous catheter for hemodialysis when the NDA is approved, which will add an additional six months
of marketing exclusivity when the study is completed. CorMedix received a second Complete Response Letter from the FDA last August related
to deficiencies at both its primary contract manufacturer and its supplier of heparin API. After receiving guidance from FDA at a Type
A meeting in April of 2023, the NDA for DefenCath was resubmitted. In June of 2023, the NDA was accepted for filing by the FDA. CorMedix
also intends to develop DefenCath as a catheter lock solution for use in other patient populations, and the company is working with top-tier
researchers to develop taurolidine-based therapies for rare pediatric cancers. For more information visit: www.cormedix.com.
Forward-Looking
Statements
This
press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of
1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that
are subject to risks and uncertainties. All statements, other than statements of historical facts, regarding management’s expectations,
beliefs, goals, plans or CorMedix’s prospects, including, but not limited to, the expected net proceeds from the offering, the
expected use of proceeds, the timing of the closing of the offering, CorMedix’s future financial position, financing plans, future
revenues, projected costs and the sufficiency of our cash and short-term investment to fund our operations are forward-looking statements
reflecting the current beliefs and expectations of management. Readers are cautioned that actual results may differ materially from projections
or estimates due to a variety of important factors, including: the risks and uncertainties related to market conditions; satisfaction
of customary closing conditions related to the offering; and as risks and uncertainties set forth in CorMedix’s Annual Report on
Form 10-K for the year ended December 31, 2022, and the preliminary prospectus supplement related to the public offering and subsequent
filings with the SEC. These and other risks are described in greater detail in CorMedix’s filings with the SEC, copies of which
are available free of charge at the SEC’s website at www.sec.gov or upon request from CorMedix. CorMedix may not actually achieve
the goals or plans described in its forward-looking statements, and investors should not place undue reliance on these statements. CorMedix
assumes no obligation and does not intend to update these forward-looking statements, except as required by law.
Investor
Contact:
Dan
Ferry
Managing
Director
LifeSci
Advisors
(617)
430-7576
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